Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Martin L. Herscovitz, Judge. Los Angeles County Super. Ct. No. MA033096
Barbara Michel, 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General and Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Brandon Wilson (defendant) and another African-American man approached a group of people who had gathered in the street outside a party. Defendant was asked to leave but refused, and instead engaged in a physical altercation with some of the women in the group. When the male victim attempted to intervene on the women’s behalf, defendant shot him four times and then fled the scene, firing at least two more times at the partygoers pursing him.
Defendant was identified as the shooter at trial by the victim and three of the partygoers. The jury found him guilty of the attempted murder of the victim and mayhem. On appeal, defendant contends that the pretrial identification procedures used by police were unduly suggestive and tainted the reliability of the in-court identifications by three of the witnesses. He further argues that the failure of his trial counsel to object to the identification evidence at trial did not result in a forfeiture of the identification issue and that, to the extent the issue has been forfeited, his trial counsel’s failure to object constituted ineffective assistance of counsel. Finally, defendant contends that, under Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper term sentences on Counts 1 and 3 based on aggravating factors that were not found by the jury to be true, or that were proved by inadmissible evidence.
We hold that defendant has forfeited the identification issue by failing to object to the identification evidence at trial, that defendant’s ineffective assistance of counsel claim is not cognizable on appeal, and that the trial court did not err in imposing the upper term sentences on Counts 1 and 3. We therefore affirm the judgment.
FACTUAL BACKGROUND
A. The Incident
On August 28, 2005, Noah Manninen (Manninen) attended a party at a home in Lancaster with his fiancée, Wendy King (King). Manninen had four to six beers by 1:30 a.m. and was “buzzed,” but not drunk. Manninen, who is Caucasian, engaged in a verbal altercation with “Chuck,” an African-American. Manninen and Chuck went outside into the street and continued the verbal altercation. The altercation was “deescalating,” as people from inside the party came outside to see “what was happening.” Tiffany Polcyn (Polcyn) and her sister accompanied Manninen’s fiancée, King, as she went outside.
Manninen noticed two African-American males walking down the street towards him. They were staring at Chuck and Manninen. Someone told the two males to leave. King, Polcyn, and Polcyn’s sister then approached the two males and asked them to leave. The men “started putting their hands on the women.” Defendant pulled King’s hair, punched Polcyn in the mouth, and grabbed Polcyn’s sister.
Manninen approached the two men to help the women. King, whom defendant was holding by the hair, was between Manninen and defendant. As defendant was holding King down on the ground by her hair, he took out a semi-automatic handgun and started shooting at Manninen. Defendant fired five or six shots at Manninen. Before defendant began to shoot, Manninen was able “to get a good look at [defendant’s] face.”
Manninen was shot in the leg and fell to the ground. He suffered a total of four gunshot wounds—one to his left knee that shattered his left knee cap into “50 pieces” and broke his femur in half; one to his left hip; one to the left side of his buttocks; and one that grazed his left thumb. He was hospitalized for seven days, could not walk for three to four months, and underwent blood transfusions and several surgeries.
Luke Minghelli (Minghelli) attended the party at which Manninen was shot. He was drinking with friends, and saw Manninen at the party but did not know him. He was drinking “Jagermeister and Red Bull mixed,” and had “had quite a few.” He was “pretty hammered,” but was able to perceive what was happening. He observed Manninen arguing with an African-American man inside the house. When the verbal altercation between the two men moved outside into the street, Minghelli and his friends followed.
Minghelli testified that two African-American men approached him and his friends. The two men came up to Minghelli and his friends “like, crazy.” One of Minghelli’s friends told them to relax, and then one of the women told them to “move on.” When defendant punched the woman, one of Minghelli’s friends punched defendant, knocking him to the ground. Defendant then pulled out a gun and started shooting. Five or six shots were fired. The two African-American men ran from the area, with Minghelli and his friends in pursuit. Defendant fired approximately three rounds at Minghelli and his friends as they pursued him. Minghelli and his friends returned to the scene of the shooting, and saw Manninen lying on the ground bleeding.
As discussed below, Minghelli testified there was a “good possibility” that defendant was one of the two African-American men that he observed that night.
B. The Identification Evidence
Manninen never described defendant to the police. In addition, Manninen was initially unable to identify defendant from a book of photographs because he had just returned home from the hospital, was heavily sedated, and felt “blurry [or] foggy.” He was later able to identify defendant from a stack of photographs presented to him by the police because he was not feeling the effects of his medication as much on that second occasion. Manninen also positively identified defendant in court at both the preliminary hearing and at trial.
Minghelli was not shown photographs of suspects, but at the preliminary hearing and at trial he indicated that there was a “good possibility” that defendant was the shooter. Minghelli based his testimony on defendant’s hair and facial features.
King described defendant to the police after the shooting. When she was later shown approximately 20 to 25 photographs of suspects, she thought a photograph of defendant looked familiar, but because she was not certain she did not mention it to the police at the time. King thought more about the photograph that evening and wanted to review the photographs again. Several days later, the police showed King six photographs and she positively identified the photograph of defendant. At trial, King positively identified defendant, stating that she was “100 percent positive” that defendant was the man who shot Manninen.
Polcyn identified defendant as the shooter from a “flip book” of photographs about ten days after the shooting. She also positively identified him in court at trial.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging defendant in Counts 1 and 2 with the premeditated attempted murder of Manninen and Minghelli in violation of Penal Code sections 664 and 187, subdivision (a) and in Count 3 with aggravated mayhem in violation of section 205. The District Attorney alleged that during the commission of the offenses charged in Counts 1 and 3, defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and, as to all the charged offenses, that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d). The District Attorney further alleged that the charged offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A) and were hate crimes within the meaning of section 422.75, subdivision (a). Defendant pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise stated.
During the jury trial, the trial court dismissed the hate crime allegation and reduced the Count 3 aggravated mayhem charge to the lesser offense of mayhem in violation of section 203. The jury found defendant guilty of the attempted murder of Manninen, Count 1, but found the deliberation and premeditation allegations not to be true. The jury found defendant not guilty of the attempted murder of Minghelli, Count 2. The jury found defendant guilty of mayhem on Count 3 and, as to both Counts 1 and 3, found the great bodily injury, firearm, and gang allegations to be true.
The trial court sentenced defendant to the upper term of nine years in state prison on Count 1 and the upper term of eight years on Count 3. As to both Counts 1 and 3, the trial court imposed an additional 10 year consecutive term pursuant to section 186.22, subdivision (b)(1)(A) and an additional consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d). The trial court stayed the sentence as to Count 3. The trial court awarded defendant 312 days of custody credit, consisting of 272 days of actual custody credit and 40 days of conduct credit.
DISCUSSION
A. Forfeiture
At trial, the prosecution presented the identification evidence discussed above without any objection from defendant’s trial counsel. Defendant contends that despite his trial counsel’s failure to object to the identification evidence, he has not forfeited the issue. According to defendant, an appellate court has inherent authority to review a claim that was inadequately reserved below.
“‘[A]s a general rule, “the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.” [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]’ (In re Seaton (2004) 34 Cal.4th 193, 198 [17 Cal.Rptr.3d 633, 95 P.3d 896].) This rule applies equally to any claim on appeal that the evidence was erroneously admitted, other than the stated ground for the objection at trial. When an objection is made to proposed evidence, the specific ground of the objection must be stated. The appellate court’s review of the trial court's admission of evidence is then limited to the stated ground for the objection. (Evid. Code, § 353.)” (People v. Kennedy (2005) 36 Cal.4th 595, 612; People v. Abilez (2007) 41 Cal.4th 472, 493.)
“In requiring an objection at trial, the forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. (In re Seaton, supra, 34 Cal.4th at pp. 198–199.)” (People v. Kennedy, supra, 36 Cal.4th at p. 612.) “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [], italics in Doers.) “‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .’” (People v. Walker (1991) 54 Cal.3d 1013, 1023 [].) “‘No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ (United States v. Olano (1993) 507 U.S. 725, [123 L.Ed. 2d 508, 517, 113 S.Ct. 1770].)” (People v. Valdez (1995) 33 Cal.App.4th 1633, 1638-1639.)
It is undisputed that defendant’s trial counsel did not object to the identification evidence before the trial court, thereby depriving the trial court of the opportunity to address any legitimate issues there may have been with that evidence. In doing so, defendant forfeited any right he might otherwise have had to challenge the admission of that evidence on appeal. Although defendant asserts that this court may in certain circumstances retain inherent power to determine the issue despite his forfeiture, that power may not apply when, as here, the issue involves the admission of evidence. (Evid. Code, § 353; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) In view of our conclusion in Discussion section B, below, the failure to consider the issue would not result in any miscarriage of justice. Thus, we do not determine the issue on appeal.
B. Ineffective Assistance of Counsel
Defendant argues that if his trial counsel’s failure to object resulted in a forfeiture of his right to challenge the admissibility of the identification evidence, then he received ineffective assistance of counsel at trial. “‘Failure to object rarely constitutes constitutionally ineffective legal representation.’ (People v. Boyette (2002) 29 Cal.4th 381, 424 [127 Cal.Rptr.2d 544, 58 P.3d 391].) ‘If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)’ (People v. Gray (2005) 37 Cal.4th 168, 207 [33 Cal.Rptr.3d 451, 118 P.3d 496].)” (People v. Abilez, supra, 41 Cal.4th at p. 493, fn. 3.) “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
The record in this case does not reflect why defendant’s trial counsel failed to object to the identification evidence, and the trial court did not request an explanation for trial counsel’s inaction. Given that defendant’s trial counsel retained an expert who testified extensively about the reliability of the prosecution’s identification evidence, it might be that trial counsel chose not to object so that he could call that expert to discredit the prosecution’s evidence prior to calling defendant’s two alibi witnesses who testified that defendant was with them on the evening of the shooting. Absent a request from the trial court for an explanation and a refusal by trial counsel to provide one, we cannot on this record speculate as to the reasons for trial counsel’s decision not to object. We are therefore required to reject defendant’s claim of ineffective assistance of counsel.
Moreover, on this record we cannot conclude that trial counsel’s failure to object fell below an objective standard of reasonableness. (People v. Snow (2003) 30 Cal.4th 43, 111.) Contrary to defendant’s assertion, the record does not establish that the photographic lineups were unduly suggestive. That two of the witnesses were shown photographs a second time was explained by Manninen being heavily sedated the first time and King’s request to see them a second time because she thought she had recognized defendant the first time. Although defendant contends not all of the photographs were of similar appearing people, there is no requirement that a defendant in a photographic lineup be surrounded by others nearly identical in appearance. (See People v. Johnson (1992) 3 Cal.4th 1183, 1217.) The witnesses testified that they had observed defendant at the scene prior to the shooting. Thus, even if the witnesses’s pretrial identifications were suggestive and unreliable, their in-court identifications of defendant could have nevertheless been admissible because they were based on the witnesses’s observations of defendant at the time of the shooting. (People v. Ratliff (1986) 41 Cal.3d 675, 689.)
C. Sentencing
Defendant argues that the trial court erred by imposing the upper term sentences on Counts 1 and 3. According to defendant, his juvenile adjudications were not convictions and, therefore, under Cunningham, supra, 127 S.Ct. 856, the fact of those adjudications could only have been found by a jury; and, in any event, those adjudications were not supported by adequate proof. As for his adult convictions, defendant contends that the prosecution failed to prove any of them with admissible evidence. Defendant also asserts that the fact of his probation history could only have been found by a jury and that a probation report is not admissible evidence of probation violations.
In sentencing defendant to the upper term on both Count 1 and Count 3, the trial court stated its reasons as follows: “In looking at this, I’m not going to cite, because of the present case before the U.S. Supreme Court, any factors in aggravation that relate to the facts in this case. I’m only going to look at defendant’s past before this case occurred, and that would be the fact that as a juvenile he suffered adjudications for possession of a firearm, burglary, and receiving stolen property in ’97. That same year an additional adjudication for a grand theft. [¶] A year later camp placement for violation of probation and a resisting arrest. [¶] Then as an adult, we’ll ignore his acquittal by a jury of the assault with a firearm case; misdemeanor conviction in ’99; then his felony conviction in the year 2000, for which he is still on probation for battery with serious bodily injury; and then the second probation violation that’s before the court for second degree burglary in 2004, as well as two other misdemeanors in between. [¶] All those convictions and adjudications both as a juvenile and an adult show that they are of increasing seriousness, numerous, and make him an extreme danger to society. [¶] Second, he was on probation for not one, but two felony convictions at the time of the commission of this offense. [¶] There has also been prior violations of probation because he was on probation for one of the two probation cases before the court when he committed the second one. [¶] So for all those factors in aggravation, [the] court finds no factors in mitigation. [The] [c]ourt imposes the high term . . . .”
According to the Supreme Court in Cunningham, supra, 127 S.Ct. 856, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005).” (Id. at p. 864, italics added.) The exceptions to a defendant’s Sixth Amendment rights noted in Cunningham have recently been explained by the California Supreme Court. “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239–244 [140 L.Ed. 2d 350, 118 S.Ct. 1219].)” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.)
The trial court in this case found that defendant had previously been convicted of two felonies and two misdemeanors as an adult. According to the foregoing authorities, defendant had no Sixth Amendment right to a jury trial on the fact of any of those convictions. Thus, the trial court’s findings as they related to the fact of those adult convictions did not contravene Cunningham, supra, 127 S.Ct. 856.
Moreover, under California’s determinate sentencing system, once a trial court properly finds a single aggravating fact, a defendant is eligible for an upper term sentence, meaning the midterm is no longer the maximum sentence the trial court is authorized to impose. “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed. 2d 524, 122 S.Ct. 2406].) . . . [¶] The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ (Blakely, supra, 542 U.S. at p. 309.) Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 [55 Cal.Rptr.2d 26, 919 P.2d 640].) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813.)
As noted above, the trial court in this case properly found that defendant had suffered prior criminal convictions as an adult, and defendant had no right to a jury trial as to the fact of those convictions. Any one of those convictions was sufficient to make defendant eligible for the upper term. The trial court imposed the maximum term authorized by law and for which the defendant was eligible, after exercising its discretion to select an appropriate sentence by weighing and balancing the factors in aggravation and mitigation. In doing so, it did not violate defendant’s Sixth Amendment rights as set forth in Cunningham, supra, 127 S.Ct. 856.
Although defendant now argues that the proof of his prior juvenile adjudications, adult convictions, and probation history was inadequate, he made no objection to that proof at the time of his sentencing. Had he done so, the prosecution and the trial court would have been afforded the opportunity to address those objections and correct any alleged deficiencies in the evidence. According to the authorities cited in Discussion section A, above, defendant has forfeited his right to challenge the underlying proof presented to the trial court establishing his criminal history. (See, e.g. People v. Kennedy, supra, 36 Cal.4th at p. 612.)
DISPOSITION
The judgment of the trial court is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.