Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA275631, Curtis Rappe, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Carlos Wilkerson challenges his murder conviction on the ground that he was prejudiced by the failure of his trial counsel to bring a timely motion for a live lineup and by counsel’s advising the jury in opening statement that he would testify in his own defense. We conclude that the conduct of Wilkerson’s counsel was within the objective standard of reasonableness and find no basis for reversal. Wilkerson also argues the trial court erred in imposing a firearm enhancement based on the same facts underlying the murder conviction, in violation of the merger doctrine announced in People v. Ireland (1969) 70 Cal.2d 522 (Ireland) and under Penal Code section 654. We conclude that neither Ireland nor section 654 applies. We shall affirm the judgment.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
Wilkerson was convicted of shooting Federico Galvan to death as Galvan sat in the driver’s seat of a car at an intersection in Los Angeles. Eyewitnesses selected Wilkerson’s photograph from a six-pack photographic display prepared by the police. Maurice Breveard testified that, before the shooting, Wilkerson told him he was going to kill Galvan. Wilkerson said that Galvan had told members of the Florencia gang that Wilkerson had stolen a vehicle belonging to a member of that gang. Breveard, Wilkerson, and Galvan were car thieves. Breveard said that Wilkerson carried a .40 Glock firearm, and perhaps other firearms. Nine .40 caliber bullet casings were recovered at the crime scene. Wilkerson’s defense, presented through the testimony of his godparents, was that he was shopping with them at the time of the shooting. The godparents testified that he was driving a green BMW at the time. That is the same make and color as the car identified by a witness who saw Wilkerson flee the crime scene.
Wilkerson was convicted of first degree murder and possession of a firearm by a felon. An allegation that he personally and intentionally discharged a firearm (§ 12022.53, subds. (b)-(d)) was found true. He was sentenced to a prison term of 25 years to life on the murder count plus a consecutive 25-year-to-life term for the firearm enhancement. A concurrent two-year midterm sentence on the possession verdict was stayed. This timely appeal followed.
Wilkerson also filed a petition for writ of habeas corpus, No. B196569. We deferred consideration of that petition until the appeal was on calendar.
DISCUSSION
I
Wilkerson argues that he received ineffective assistance of counsel because his attorneys failed to bring a timely motion for a live lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617. He was arrested on the present charge in December 2004, and arraigned in January 2005. At the preliminary hearing six months later, appellant was represented by the Los Angeles County Public Defender’s Office. At the first appearance following the arraignment, in August 2005, the public defender declared a conflict and the alternate public defender’s office was appointed as counsel. A series of trial continuances at the request of the defense followed.
On September 15, 2005, the alternate public defender moved for a live lineup on the ground that identification was a material issue. The district attorney filed written opposition. The People argued that a live lineup would be virtually pointless because two of the eyewitnesses had identified Wilkerson from photographs and at the preliminary hearing. In addition, the nine-month delay in bringing the motion and the burden to the witnesses were raised as grounds for denial of the motion.
At oral argument on the motion, counsel for Wilkerson argued that there had been two suggestive identification procedures in the case. The first was the composition of the six-pack photo display, from which four of the five eyewitnesses identified Wilkerson as the shooter. The second was the identification of Wilkerson as the shooter by two of the witnesses (Efrain Gomez and Jose Fuentes) at the preliminary hearing, under what counsel described as a suggestive environment.
The court asked whether a live lineup would be meaningless for the witnesses who had identified Wilkerson from the photographs and then again at the preliminary hearing. Defense counsel acknowledged that had she been the lawyer at the time, her preference would have been to make the motion before the preliminary hearing. She argued that the delay cut both ways. In the event of a positive identification at a live lineup by the two witnesses who testified at the preliminary hearing, defense counsel would challenge the identification on the ground that they had seen Wilkerson twice before. If the witnesses failed to identify Wilkerson at a live lineup, the prosecutor would argue the passage of time.
The court again inquired as to what the live lineup would add to the trial. Defense counsel argued that, as to the witnesses who did not testify at the preliminary hearing, they would identify Wilkerson at trial because he would be seated next to defense counsel. The prosecutor argued that as to the witnesses who had not testified previously, the passage of time would render a live lineup meaningless.
Defense counsel then spoke with the trial court ex parte and said that in interviews, three of the witnesses who did not testify at the preliminary hearing disputed the statements attributed to them in the police report concerning identification of Wilkerson. The trial court denied the motion: “ I just don’t see the probative value of the lineup at this time based on the fact that we are over 10 months past the arrest. [¶] It probably would have been a great case to do a lineup before the [preliminary hearing], but at this time I don’t see the value of the lineup. Each side is going to have their own spin on why people do or don’t identify based on the time limit, so the motion for a live lineup is respectfully denied.”
“‘[T]he questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge.’ (Evans, supra, 11 Cal.3d at p. 625.)” (People v. Williams (1997) 16 Cal.4th 153, 236.) Respondent argues the trial court did not abuse its discretion in denying the motion because (1) it was untimely; (2) there was no reasonable likelihood of misidentification; and (3) the speculative benefits of a live lineup did not outweigh the burden of that procedure.
In Evans v. Superior Court, supra, 11 Cal.3d 617, the Supreme Court held that “due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.” (Id. at p. 625.) The Supreme Court revisited Evans in People v. Williams, supra, 16 Cal.4th 153, 235. It held that “the right to a lineup arises ‘only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.’ (Ibid.)”
Identification was a material issue in this case. Witness Gomez’s preliminary hearing testimony was difficult to follow and confusing. He repeatedly stated he did not get a good look at the shooter, but had identified Wilkerson from the photo six-pack when interviewed by the police. Witness Jose Fuentes testified at the preliminary hearing that he was inside a house about a block from the intersection when he heard nine to 10 shots fired. He went outside to the sidewalk and saw a BMW 325 series dark green car, driving fast. The car hit the curb, turned, and flew by him. He saw an African American man in the car. The man was of medium complexion and wearing a white shirt. He described the man as in his 20’s or 30’s, with a fade type of hair cut, and a moustache. He identified Wilkerson in the courtroom as the driver, and identified him from the photo six-pack. He said that he chose Wilkerson’s photo from the six-pack “because that’s the face that looked like the one I’ve seen that day.”
Based on this record of the preliminary hearing, defense counsel could reasonably have concluded that identification was a material issue in the case and that a request for a live lineup under Evans v. Superior Court, supra, 11 Cal.3d 617 was appropriate. The issue before us is whether the failure to make that motion in a timely manner constituted ineffective assistance of counsel.
The Supreme Court has held that “a claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), where ‘relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s “representation fell below an objective standard of reasonableness,” and whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)’ (People v. Snow (2003) 30 Cal.4th 43, 111.)” (People v. Tafoya (2007) 42 Cal.4th 147, 196, fn. 12.)
Here, the record on appeal does not reflect why the motion was not brought while the public defender’s office was representing Wilkerson. As the trial court observed, a corporeal lineup is a two-edged sword. This is so even if it is conducted much closer in time to the commission of the charged crime. The defendant is harmed if identified in a live lineup, and aided if he is not.
In addition to Gomez and Fuentes, who testified at the preliminary hearing, there were three other eyewitnesses to the shooting. At the time, Angelica Pacheco was driving a car on Slauson and was about to turn onto Compton. Her mother Lydia, and brother Steve, were passengers in her car. Angelica was 35 feet from the shooter at the time of the shooting. She identified Wilkerson’s photograph from the six-pack display, writing the notation: “The person in photo No. 2 I strongly believe he was the one pointing the gun at the driver in the red Mustang.” While she testified at trial that she was not hesitant about that identification, she told detectives that she was not 100 percent sure about the identification, and that she had not seen much of the shooter’s face. She chose photograph No. 2 (Wilkerson) because it reminded her of the shooter, “the way he has his hair and then his face.”
Angelica’s brother, Steve Pacheco, also selected photograph No. 2 from the six-pack display. He said that he “pointed out the guy that looked like the guy I described to them.” His notation on the photo display read: “The person in the photo number 2 probably was the person shooting at the red Mustang. . . .” He identified Wilkerson as the shooter at trial. On cross-examination, Steve explained that the person in No. 2 probably was the shooter, but that it does not mean that he was the shooter. Lydia Pacheco was unable to identify any of the suspects in the six-pack display.
A defense attorney could reasonably have concluded that a live lineup before the preliminary hearing raised the risk that the eyewitnesses would identify Wilkerson as the shooter. “‘“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.”’” (People v. Bradford (1997) 14 Cal.4th 1005, 1052, quoting People v. Zapien (1993) 4 Cal.4th 929, 980.) On this record, we cannot conclude that the representation by Wilkerson’s counsel fell below the objective standard of reasonableness. (Strickland v. Washington, supra, 466 U.S. at p. 688.)
II
Wilkerson argues that his defense counsel was ineffective because he promised in his opening statement that Wilkerson would testify. Wilkerson ultimately chose not testify in his own defense.
Before the opening statements, the trial court explained the purpose of the statements to the jury: “[I]n the opening statements the attorneys have the opportunity to tell you what they expect the evidence to show. And I underline the word expect because it doesn’t always turn out that way. But at least at this point they’re entitled to tell you what they expect the evidence to show.”
In his opening, counsel for Wilkerson reviewed the expected testimony of the eyewitnesses. He also discussed Breveard’s expected testimony regarding the motive for the shooting. He continued: “Mr. Wilkerson will testify. He will tell you that he did not do the killing, he did not participate in any shooting and he did not have a motive to kill Mr. Galvan. He will acknowledge his criminal past of car thefts, the reason why the car thefts—and many of you jurors were victims of car thefts so we hope you don’t hold it against anybody in this case—but the victim himself was involved in a car theft ring and Mr. Wilkerson was involved in a car theft ring. [¶] He will tell you that Mr. Galvan was much younger than he was, that they ran with different crews, and that although they were aware of each other he had nothing to do with Mr. Galvan because he was much younger and from a different neighborhood, not a gang neighborhood, but they grew up in different neighborhoods. They knew each other from this inner-racial [sic] car theft ring, a very diverse car theft ring, but did not run together.”
In his appeal, Wilkerson argues that counsel was incompetent by promising testimony which he could not guarantee. The problem with his argument is similar to the problem in his first claim of ineffective assistance: competent counsel may have had a reasonable tactical basis to say that Wilkerson would testify. For example, that decision could have been motivated by fear that the jurors might become predisposed to convict Wilkerson without a strong statement of his innocence in the opening. The record on the appeal does not reflect why that choice was made. On a silent record, where there are rational grounds for the choice made by counsel, we may not reverse the conviction on the grounds of ineffective counsel. (See People v. Bradford, supra, 14 Cal.4th at p. 1052.)
In a declaration filed in support of Wilkerson’s habeas petition (B196569), trial counsel stated that his opening statement that Wilkerson would testify was prompted by what he perceived as a strong opening statement made by the prosecutor, and by the fact that Wilkerson was leaning toward testifying at the time. In a separate order, we denied the petition for writ of habeas corpus.
III
Wilkerson was sentenced to an indeterminate sentence of 25 years to life for murder and an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), for the use of a firearm during the commission of the offense (count 1). He contends that by imposing both a 25-year-to-life term for the murder conviction and a consecutive enhancement of 25 years to life pursuant to section 12022.53, subdivision (d), the trial court punished him twice for the same conduct. As a result, he contends the imposition of the additional 25-year-to-life term pursuant to section 12022.53, subdivision (d), violates the merger doctrine of Ireland, supra, 70 Cal.2d 522, and section 654.
Wilkerson recognizes that his argument based on Ireland was rejected by the court in People v. Sanders (2003) 111 Cal.App.4th 1371 (Sanders), and invites us to disagree with the reasoning of that decision. In Sanders, two defendants were convicted of first degree murder and firearm enhancement allegations under section 12022.53, subdivision (d) were found true. Citing Ireland, defendant Sheppard argued the trial court erred in imposing a consecutive 25-to-life term under section 12022.53, subdivision (d). In Ireland the Supreme Court held that the felony-murder rule could not be applied when the only underlying or predicate felony the defendant committed was assault, because the assault is an integral part of the homicide. It reasoned that the felony of assault merged into the resulting homicide. (70 Cal.2d at p. 539.)
The Sanders court observed that the Ireland merger doctrine had not been applied outside the context of felony murder and assault. (Sanders, supra,111 Cal.App.4th at p. 1374.) It cited People v. Hansen (1994) 9 Cal.4th 300, which held that the doctrine applies to “‘certain inherently dangerous felonies,’ and permits them to be used ‘as the predicate felony supporting application of the felony-murder rule’ only when this ‘will not elevate all felonious assaults to murder or otherwise subvert the legislative intent.’” (Sanders, supra, 111 Cal.App.4th at p. 1374, quoting People v. Hansen, supra, 9 Cal.4th at p. 315.) The Sanders court observed that “t]hus far, there is no authority extending the merger doctrine to enhancements,” and concluded that “[a] sentence enhancement does not fit within this delineation of the merger doctrine.” (Sanders, supra, 111 Cal.App.4th at p. 1374.)
We agree with the approach of the court in Sanders. The concerns at the heart of the Ireland merger doctrine are not presented here. The Ireland court found that since most homicide cases involve an assault, the prosecution would be relieved of the burden of proving malice if assault could be used as the predicate crime. (Ireland, supra, 70 Cal.2d at p. 539.) The firearm enhancement does not reduce the prosecution’s burden of proving malice, or any other element of murder. We agree with Sanders that Ireland has no application to firearm enhancements.
Wilkerson also argues that the consecutive term under section 12022.53, subdivision (d) violates section 654, subdivision (a). That statute provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Section 12022.53, subdivision (d), states: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) . . ., personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (Italics added.) Murder is one of the felonies listed in section 12022.53, subdivision (a).
Section 954 allows an accusatory pleading to charge different statements of the same offense under separate counts and allows the defendant to be convicted of any number of the offenses charged.
The Supreme Court held that “the broad and unambiguous scope of ‘[n]otwithstanding any other provision of law’ overrides the application, if any, of section 654 to the imposition of punishment prescribed in section 12022.53, subdivisions (b), (c) and (d).” (People v. Palacios (2007) 41 Cal.4th 720, 729, 730 (Palacios).)
In Palacios, the Supreme Court reasoned that section 12022.53 contemplates the imposition of enhancements to certain qualifying crimes when those offenses involve the use of a firearm. It cited People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins), in which the defendant was convicted of second degree murder and shooting at a person from a motor vehicle. The jury found true a special allegation that the defendant had personally and intentionally discharged a firearm proximately causing the death of the victim, and an enhancement pursuant to section 12022.53, subdivision (d) was imposed. The defendant argued that the trial court violated section 654 in imposing the additional 25 years to life sentence under section 12022.53 because he was punished twice for the same act. The Supreme Court discussed Hutchins: “Quoting and italicizing the phrase ‘[n]otwithstanding any other provision of law’ of section 12022.53, subdivision (d), the [Hutchins] court held: ‘Clearly, in enacting this provision, the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislature’s intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties.’ (Hutchins, at p. 1313.)” The Palacios court then concluded: “Thus, ‘where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement.’” (41 Cal.4th at pp. 732-733, quoting Hutchins, at p. 1314; in accord, People v. Sanders (2003) 111 Cal.App.4th 1371, 1375.)
The defendant in Palacios argued that Hutchins and related cases were inapplicable because they hold only that section 654 does preclude imposition of punishment for the substantive offense and under section 12022.53 when both are based on the same conduct, and that this analysis is inapplicable where multiple enhancements are based upon a single injury. (Palacios at p. 733.) The Supreme Court rejected this argument, observing that the language of section 12022.53 “leaves no room for such parsing. Nothing in the statute suggests the Legislature intended to override section 654 as to some applications of section 12022.53, but not others.” (Ibid.)
Applying the reasoning of Palacios, we find no impropriety in the imposition of the enhancement under section 12022.53, subdivision (d).
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.