P. v. Huang

P. v. Huang

















Filed 8/5/10 P. v. Huang CA2/6













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION SIX




>

THE PEOPLE, Plaintiff and Respondent, v. XIAO WEI HUANG, Defendant and Appellant.

2d Crim. No. B215017 (Super. Ct. No. GA071501) (Los Angeles County)

Xiao Wei Huang appeals
the judgment following his conviction for assault
with a deadly weapon. (Pen. Code,
§ 245, subd. (a)(1).)[1] The jury found a true allegation that Huang
inflicted great bodily injury in the commission of the offense. (§ 12022.7, subd. (a).) Huang was sentenced to prison for a term of
six years consisting of the three-year middle term for the assault plus three
years for the enhancement. He contends
the trial court erred in denying his motion
for new trial which was based on a claim of ineffective assistance of
counsel. We affirm.

FACTS

Yu Liu was dining at a
restaurant in the late evening. At the
time of the offense, he was standing near his table after returning from the
restroom. Appellant Huang approached Liu
quickly from behind and smashed a glass into the right side of his head and
eye. Liu was taken to the hospital where
he received approximately 25 stitches.
He continues to suffer from blurred vision.

Grace Chen was with Liu
at the restaurant, and identified Huang as the person who smashed the glass
into Liu's face. She testified that,
before the assault, she had observed Huang sitting at another booth in the
restaurant and noticed that he was arguing loudly with a hostess about a bill
and threw a glass at the hostess. Chen
testified that Huang was wearing a white hat.
Cheng Mei Huang was also sitting with Liu at the restaurant. Initially, Cheng Mei Huang was uncertain, but
later identified Huang as the person who hit Liu with the glass.

Restaurant employee
Robert Chen saw Huang before the attack and remembered him from earlier visits
to the restaurant. He saw Huang throw a
glass in an argument with a hostess and warned Huang not to do it again. Robert Chen did not see the assault itself
but saw Liu lying on the ground with Huang standing next to him. Chen stated that he saw a considerable amount
of blood. When Chen tried to grab Huang,
Huang pulled away and fell to the ground.
He then got up and ran out of the restaurant. When Chen went outside, he saw a trail of blood
leading away from the restaurant. Chen
testified that Huang was wearing a white cap.


Security guard Jose
Acosta saw Huang earlier in the evening and refused to admit Huang to the
restaurant because he did not have identification. Later, the restaurant owner let Huang
in. Immediately after the assault,
Acosta saw Huang running out the restaurant door and tried to grab him. Huang's hand was bloody. Acosta chased after Huang, lost him after a
couple of minutes, but caught up to him by following a trail of blood.

Huang was apprehended by
the police two and one-half blocks from the restaurant. Grace Chen, Cheng Mei Huang, and another
person were taken by the police to the place Huang was being detained. Both Chen and Cheng Mei Huang identified Huang
as the assailant.





DISCUSSION

Huang contends the trial
court erred in denying his motion for a
new trial. He argues that trial
counsel provided ineffective assistance when counsel failed to call an eyewitness
identification expert to challenge the evidence identifying Huang as the person
who attached Liu. We disagree.

Although
ineffective assistance of counsel is not a ground for a new trial under section
1181, new trial motions alleging ineffective assistance are permitted pursuant
to "the constitutional duty of trial courts to ensure that defendants be
accorded due process of law." (People
v. Fosselman (1983) 33
Cal.3d 572, 582; People v. Callahan (2004) 124 Cal.App.4th 198,
209.) The granting of a
new trial is always reviewed under the abuse of discretion standard, but there is authority
that denial of such a motion is independently
reviewed if the claimed errors are of constitutional magnitude. (People v. Ault (2004) 33 Cal.4th
1250, 1260-1261, 1265 [independent review of motion based on juror misconduct];
People v. Nesler (1997) 16 Cal.4th 561, 582 [same]; but
see People
v. Hoyos
(2007) 41 Cal.4th 872, 917, fn. 27 [abuse of discretion review of motion based
on Brady >[2] > violation and ineffective assistance of counsel].)

Here, we conclude that there was no error in denying the new
trial motion under either standard of review.
Huang has failed to establish through substantial, credible evidence
that his trial counsel's performance was deficient or, if so, that he suffered
prejudice. (See In re Alvernaz (1992) 2 Cal.4th 924, 944-945.) In reaching our conclusion, we have
undertaken an independent review of the record but necessarily rely in part on
the trial court's unique ability to evaluate an attorney's performance and make
an initial determination of whether counsel's acts or omissions were those of a
reasonably competent attorney. (People v. Fosselman, supra, 33 Cal.3d
at p. 582; People v. Callahan, supra, 124 Cal.App.4th at pp.
210-211.)

To establish ineffective assistance of counsel, a
defendant must show both deficient performance measured against the standard of
a reasonably competent attorney, and prejudice to the extent that counsel's
deficient performance "so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a
just result." (Strickland v. Washington (1984) 466 U.S. 668, 686-688; >People v. Hester (2000) 22 Cal.4th 290,
296.) If the
record on appeal fails to show why counsel acted or failed to act in the matter
challenged, we will reverse a conviction only if the record affirmatively
discloses that counsel had no rational tactical purpose for his act or
omission. (People v. Jones
(2003) 29 Cal.4th 1229, 1254.) On direct appeal, we presume that counsel's conduct
falls within the wide range of reasonable professional assistance and will not
engage in the "perilous process" of second-guessing counsel's trial
strategy. (People v. Frye (1998)
18 Cal.4th 894, 979-980, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Moreover, a claim that trial
counsel should have called additional witnesses must be supported by
declarations stating the substance of the omitted testimony and its likelihood
of affecting the verdict. (People v.
Bolin (1998) 18 Cal.4th 297, 334.) A
claim of ineffective assistance cannot be established by speculation regarding
the likely testimony of an uncalled witness.
(People v. Medina (1995) 11 Cal.4th 694, 773.)

Here, the trial court
appointed an eyewitness identification
expert for Huang, but trial counsel did not call the expert as a
witness. There is nothing in the trial
record or the subsequent motion for a new trial to explain counsel's reasons
for making that decision. Huang's new
trial motion raised the issue but was supported only by a declaration from new
counsel asserting that the identification expert should have been utilized.

In addition, Huang's appellate
briefs do not describe the expert's probable testimony or how it might have
helped him in this case. He notes that a
"multitude of social science studies" attest to the unreliability of
"show-up" identifications where a single suspect is displayed to a
witness without the benefit of a lineup, and asserts that the expert likely
would have emphasized the shortcomings of such identifications generally. Huang does not contend, however, that the two
show-up identifications in this case were unfairly suggestive and it is
established that a single person field identification is not inherently unfair,
and may be appropriate under certain circumstances. (People v. Ochoa (1998) 19 Cal.4th
353, 413; People v. Nguyen (1994)
23 Cal.App.4th 32, 38-39.)

Huang also relies on >People v. McDonald (1984) 37 Cal.3d 351,
where our Supreme Court stated that "it will ordinarily be error" to
exclude expert testimony "[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 . . . ." (Id. at p. 377, overruled on other grounds by People v. Mendoza
(2000) 23 Cal.4th 896.) More recently,
the court reiterated that "[e]xclusion of the expert testimony is
justified only if there is other evidence that substantially corroborates the
eyewitness identification and gives it independent reliability." (People v. Jones (2003) 30 Cal.4th
1084, 1112.)

In the instant case, however,
there was substantial corroboration of the eyewitness identification, factors
that often contribute to unreliable eyewitness identification were absent, and
there was no ruling by the trial court excluding any evidence. Huang had been in the restaurant for hours
before the attack on Liu. Grace Chen
testified that Huang aroused her attention before the assault by arguing with a
hostess and throwing a glass. Chen and
Cheng Mei Huang both testified that Huang was wearing a white hat as Huang
himself admitted at trial. Robert Chen
testified that he saw Huang standing over Liu immediately after the attack, and
that Huang ran away when Chen tried to grab him. Jose Acosta testified that Huang ran out of
the restaurant immediately after the assault, leaving a trail of blood.

In addition, there was no evidence of
inadequate lighting or excessive distance between the witnesses and Huang, and
most of the witnesses had a lengthy time to view Huang under circumstances that
were not particularly stressful. Also,
Huang's trial counsel devoted considerable effort in an attempt to discredit
the eyewitness testimony. There was no
likelihood that expert testimony would have extended beyond generic matters
regarding the reliability of eyewitness testimony in general. (See People v. Gaglione (1994) 26
Cal.App.4th 1291, 1304, disapproved on other grounds by People v. Martinez
(1995) 11 Cal.4th 434, 452.) This is not
a case in which an expert was required to explain a phenomenon outside the
realm of the jurors' reality and common sense.
(People v. Cole (1956) 47 Cal.2d 99, 103.)

The judgment is
affirmed.

NOT TO BE PUBLISHED.









PERREN,
J.





We
concur:







YEGAN, Acting P.J.







COFFEE, J.





David
S. Milton, Judge



Superior Court County of
Los Angeles









Robert Bryzman, 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, Stephanie C. Brenan, Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.







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