P. v. Edwards

Filed 7/16/07 P. v. Edwards CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur Jean, Jr., Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

Christopher Edwards appeals from his conviction for willful, premeditated and deliberate attempted murder. On appeal he claims the court gave legally inadequate jury instructions CALCRIM Nos. 226 and 315, concerning eyewitness identification issues. Edwards also asserts his counsel was ineffective for failing to challenge these instructions, or offer expert testimony concerning eyewitness identification issues and for failing to challenge the show-up identification. Finally he asserts the prosecutor committed misconduct and committed Doyle[1] error when she asked a question at trial which elicited the fact Edwards had requested counsel during his police interview. As we shall explain, none of these claims resulted in prejudicial, reversible error. Both CALCRIM Nos. 226 and 315 adequately convey the matters for the jury to weigh when considering eyewitness identification evidence. In addition, Edwards has not demonstrated his counsel was ineffective in failing to offer an identification expert or challenge the out of court identification. Finally, he has not demonstrated prejudicial Doyle error. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At about 5:30 p.m. in the evening in August 2005, Samuel Moreno, his friend and another person were walking past Silverado Park in Long Beach near Santa Fe Ave and 31st Street. They walked along the street across from the Cerritos gym. According to Moreno a crowd of about 10 young African American males stood in front of the gym. As they passed, one of the young males, later identified as Edwards stepped forward from the others and walked towards Moreno. Edwards asked Moreno where he was from, which Moreno understood to mean that Edwards was asking Moreno about his gang affiliation. Moreno testified at trial the verbal exchange took place across a four-lane street from approximately 60 feet away. Moreno also testified that when he spoke to Edwards he looked directly at him for about a minute. Moreno told Edwards that he did not bang.

Moreno began to turn to continue walking as he saw Edwards point a semi-automatic gun at him. Edwards fired the weapon as Moreno ran. Moreno heard three shots. Moreno was struck in the back and his leg. He ran to a market and then to a payphone and attempted to call 9-1-1. While he attempted to use the phone, a Long Beach police officer approached him. Moreno told the officer he had been shot and the officer called paramedics. Moreno was taken to the hospital for treatment. Moreno described the shooter as a black male about 16-18 years old wearing dark pants, a black sweatshirt with a white t-shirt underneath. The police put out a dispatch of the suspect.

An officer in his patrol car in the vicinity of Silverado Park saw a young male, matching the description of the suspect, running through the park. The officer saw the young man jump a fence on the north end of the park.

In response to the shooting Long Beach police and swat teams set-up a containment perimeter in the area around the gym, the park and nearby neighborhood. They began a systematic search with officers and police dogs.

At about 9:30 p.m., Edwards was found by police in the containment area hiding in a trash can. The search of the area revealed no other suspects. When he was arrested Edwards wore black shoes, gray sweatpants with basketball shorts underneath, and a white tank top. He also carried a white t-shirt. The police did not find a weapon, black pants or black sweat shirt.

The police brought Edwards to the hospital where Moreno was being treated. At trial Moreno testified that the police told him that they were bringing in a suspect and admonished[2] him that the person they were bringing in may or may not be the shooter and that he didnt have to identify him unless he was sure it was the shooter. They brought in Edwards and had him ask Moreno where he was from. Moreno identified Edwards as the person who had shot him earlier. Moreno testified at trial he was confident Edwards was the shooter, and felt no hesitancy about the identification. Moreno also identified Edwards at the preliminary hearing.[3] During the trial Moreno testified he had no doubt that Edwards shot him because he recognized Edwards lips and face.

Edwards was interviewed by Police Detective Pirooz after his arrest. Detective Pirooz gave Edwards his Miranda warnings and Edwards waived them agreeing to speak to the officer. The officer testified Edwards appeared nervous and fidgeting during the interview.

Edwards told the officer that at approximately 4:00 p.m. he was working out with his home boys Freddie Battle and Bryan Webb at a gym in Silverado Park. At some point, Edwards went outside to smoke marijuana with friends. Edwards told the detective that he saw police outside so he dumped his baggie of weed but still had two marijuana cigarettes so he fled. He told the officer he had a job lined up and did not want to go to jail. Detective Pirooz told him that the penalty for smoking marijuana would have been similar to a traffic citation. Edwards said he knew that because he had been cited before. Detective Pirooz told Edwards witnesses had identified him as involved in the shooting. Edwards denied it, but became more nervous and shook more often; he would not look Detective Pirooz in the eye.

As a ruse, Detective Pirooz asked Edwards why he would have gunshot residue on his handsa fact which the detective did not know. Edwards said he had fired a gun the day before in Diamond Bar, when he was visiting his friend Bryan Webb. Edwards said he got the gun from an unknown white male. When Detective Pirooz asked Edwards why the victim would have identified him, Edwards said, Im going to jail anyway. So I want to talk to a lawyer. Edwards also said that if Detective Pirooz was going to ask him who did what, that he might as well put it on him and that he did not care about his life anymore. Edwards said he was homeless (but he supplied a home address in Long Beach), and could take jail.

Edwards was arrested and charged with two counts of attempted premeditated murder and enhancements of great bodily injury, personal use and discharge of a firearm.

During the trial Edwards told the jury he went to the gym around 4:00 p.m. and played basketball for three or four hours.[4] Edwards testified he heard a commotion and a little girl said there was a shooting. Edwards played basketball until the police came. He became nervous because he had marijuana on him, so he ran. He testified he wore gray sweat pants, basketball shorts underneath, a white tank top, and a white shirt over his shoulder. Edwards testified he dropped the two marijuana cigarettes as he ran, but still had a few fragments of marijuana in his pocket. He testified he hid in the trash can because of the marijuana and because he heard the police helicopter.

The jury found Edwards guilty of one count of attempted premeditated and deliberate murder and also found the enhancements true. The court sentenced Edwards to life in prison, plus 25 years to life for the enhancements.

Edwards filed a timely notice of appeal.

DISCUSSION

Edwards claims the trial court erred in giving legally inadequate jury instructions concerning eyewitness identification and that his counsel was ineffective for failing to object to the instructions. He also asserts his counsel was deficient because he failed to offer expert testimony concerning eyewitness identification issues and failed to challenge the one-person show-up. Finally he claims the prosecutor committed misconduct and Doyle error by eliciting testimony that Edwards asked for a lawyer during his police interview. We address each of these contentions in turn.

I.                 Jury Instruction Challenges.

On appeal Edwards claims the court failed in its sua sponte duty to give appropriate jury instructions concerning matters involved in eyewitness identification. Specifically he assails the legal adequacy of CALCRIM Nos. 226 and 315. In the alternative he asserts his counsel was ineffective for failing to object below and to ask for clarifying and modifying instructions. As we shall explain, his claims lack merit.

The trial court has a duty to adequately inform the jury on the law governing all elements of the case to allow jurors to perform their function. (People v. Shoals (1992) 8 Cal.App.4th 475, 489.) This duty is not always satisfied by a mere reading of wholly correct, requested instructions. [Citation.] A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation]. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470.)

When the court has generally instructed the jury on a point, the defendant must object and/or request a more specific instruction or the claims will be deemed waived on appeal. (People v. Shoals, supra, 8 Cal.App.4th at p. 490.) It is said that the failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. (Pen. Code, 1259; People v. Arredondo (1975) 52 Cal.App.3d 973, 978; accord, People v. Rivera (1984) 162 Cal.App.3d 141, 146). (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Ascertaining whether claimed instructional error affected the defendants substantial rights requires an examination of the merits of the claim. (Ibid.) Likewise to establish a claim of ineffective assistance of counsel the defendant must prove both counsels representation was objectively deficient and, but for counsels errors, the defendant would have received a more favorable result. (People v. Bradford (1997) 14 Cal.4th 1005, 1051.) In view of these principles we examine the merits of Edwards claims with respect to CALCRIM Nos. 226 and 315.

A.                 CALCRIM No. 226

CALCRIM No. 226 instructs the jury on how to evaluate witness testimony. CALCRIM No. 226 is an updated version of CALJIC No. 2.21.

Here Edwards claims that CALCRIM No. 226 is misleading and fails to convey the same general meaning as CALJIC No. 2.21.1. Specifically, Edwards assails one section of a paragraph in CALCRIM No. 226 which instructed the jury: Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also two people may witness the same event yet see or hear it differently. The corresponding section of CALJIC No. 2.21.1 read: Discrepancies in a witnesss testimony or between a witnesss testimony and that of other witnesses, if there were any, do not necessarily mean that [any] [a] witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. You should whether a discrepancy relates to an important matter or only to something trivial.

Edwards complaint centers on a claim that the language in CALCRIM No. 226: [p]eople sometimes honestly forget things or make mistakes about what they remember, does not mean the same things as in CALJIC No. 2.21.1: Failure of recollection is common. Innocent misrecollection is not uncommon. He argues that the term sometimes does not convey the same meaning as not uncommon.

It is true that the term sometimes is not a literal translation of the phrase not uncommon. Nonetheless the CALCRIM instructions were not intended to be exact translations of the CALJIC instructions, nor has Edwards convinced us that a literal translation is legally required for CALCRIM No. 226 to pass legal muster. The point of the re-drafting of the criminal jury instructions was to make them easier for lay jurors to understand and use during deliberations. (See Judicial Council of Cal. Crim Jury Instructions (2006) p. v, preface.) The CALCRIM instructions revised the CALJIC instructions to present concepts contained in the form criminal instructions in plain English. In our view, read in their context, CALCRIM No. 226 conveys the same general meaning as CALJIC No. 2.21.1 -- they both convey the idea that peoples memories are less than perfect and that it is not unusual for people to honestly forget or misremember events.

In any event, the language at issue in CALJIC No. 2.21.1 is not the focal part of the instruction. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [court referred to the language failure of recollection is a common experience and innocent misrecollection is not uncommon as a gratuitous observation].) The crucial point of CALCRIM No. 226 and CALJIC No. 2.21.1 is to inform jurors they should not automatically reject or discredit a witness because of discrepancies and inconsistencies in the testimony. The language Edwards complains about expands upon and explains that point, but is not the focus of the instruction. Accordingly, we do not agree that CALCRIM No. 226 is legally inadequate.

B.                CALCRIM No. 315

CALCRIM No. 315 is an updated version of CALJIC No. 2.92. In general these instructions inform the jury about the various factors they may use to evaluate eyewitness identification evidence and testimony.[5] Edwards complaint concerning CALCRIM No. 315 is not that it fails to track the language of CALJIC No. 2.92, but instead that CALCRIM No. 315 fails to instruct the jury concerning the effect of certain factors on the accuracy of the identification or failed to note important factors suggesting unreliability in identifications.

California courts, however, have consistently rejected Edwards argument when raised in connection with CALJIC No. 2.92. (People v. Johnson (1992) 3 Cal.4th 1183, 1230-1232; People v. Wright (1988) 45 Cal.3d 1126; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434.) The Supreme Court in Wright held that a proper instruction on eyewitness identification factors should focus the jurys attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [] The instruction should not take a position as to the impact of each of the psychological factors listed. (People v. Wright, supra, 45 Cal.3d at p. 1141.) The court expressly approved CALJIC No. 2.92, commenting that CALJIC No. 2.92, will usually provide sufficient guidance on eyewitness identification factors. (Ibid.) The dissent in Wright raised concerns similar to those Edwards has raised here. The majority, however, rejected the dissents contention that CALJIC No. 2.92 was inadequate. The instruction should not take a position as to the impact of each of the psychological factors listed. We disagree with the dissents suggestion that CALJIC No. 2.92 is deficient for failing to explain the effects of the enumerated factors. (Id. at p. 1157.) An instruction that explained the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge. (Id. at p. 1141, italics in original; see also People v. Johnson, supra, 3 Cal.4th at pp. 1230-1232.) The Wright court further observed that listing of factors to be considered by the jury will sufficiently bring to the jurys attention the appropriate factors, and that explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. (Id. at p. 1143.)

We therefore conclude the court was not required to provide additional instructions concerning the effect and impact of various factors upon the reliability of the eyewitness identification. In view of the foregoing we find no merit to Edwards contentions concerning the form criminal jury instructions. He did not suffer a deprivation of substantial rights with respect to these jury instructions. In addition, defense counsel was not ineffective for failing to request instructions which the court need not or should not give. (People v. Lewis (2001) 26 Cal.4th 334, 362-364.)

II.              Claim of Ineffective Assistance of Counsel

Edwards claims he received ineffective counsel during his trial because his lawyer failed to: (1) offer expert testimony concerning the unreliability of eyewitness identifications; and (2) challenge the one person show-up at which Moreno identified him. As we explain below, Edwards has failed to demonstrate that either claimed failing requires reversal.

To establish constitutionally inadequate representation, the defendant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsels failings the result would have been more favorable. [Citations.] When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation], the contention must be rejected. (People v. Haskett (1990) 52 Cal.3d 210, 248.) Otherwise the claim is more appropriately raised in a petition for habeas corpus. (People v. Carter (2006) 36 Cal.4th 1114, 1189.)

The decision to call or not to call any particular witness is generally a matter of trial tactics within the discretion of defense counsel on which this court will not ordinarily exercise judicial hindsight. (People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [[W]hether to put on witnesses [is a matter] of trial tactics and strategy which a reviewing court generally may not second guess].)

A. Eyewitness Expert

As respondent points out, there is nothing in the record to show whether Edwards trial counsel consulted with an expert or not. There is nothing in the record to show the results of any consultation or the reasons that counsel might have for not consulting an expert. When the record is silent, we must reject an appellants contention unless there could simply be no reasonable explanation for counsels action.

It might have been sound trial strategy to request the appointment of an expert in identification, but that was not the only strategy available to appellants counsel. Some of the inconsistencies and potential weaknesses in the identification were obviousthe clothes Moreno described the shooter as wearing were slightly different than those Edwards wore when he was found in the trash can, Moreno was more than 60 feet away from Edwards when the shooting occurred, the shooting was stressful and Moreno was frightened during the incident, and Moreno and Edwards were of different races. Counsel argued these matters to the jury during closing argument and might have reasonably believed that calling an expert to opine on matters of common sense would be perceived as an insult by the jury, and that it was better to simply argue the point and appeal to the jurys common sense. In addition, any identification expert would have been subject to cross-examination, during which a skilled prosecutor would have elicited testimony from the expert concerning those factors which bolstered the identification in this case, including the duration of the observation, the fact that Edwards spoke during the incident, the lighting and weather conditions, and the relatively brief time period between the shooting and the identification. The choice between such sound strategies is particularly within the province of trial counsel and not this court.

Nonetheless, as Edwards points out the effect of cross-racial identifications, stress during the incident, certainty expressed by the eyewitness, and use of a weapon upon the reliability of the identification may not be entirely obvious or known to all jurors. Consequently, expert testimony on these matters has been admitted in criminal trials. (See People v. McDonald (1984) 37 Cal.3d 351, 368-370 [discussing the effect of cross-racial identifications and degree of witness certainty and concluding that it appeared from the professional literature [that certain] factors bearing on eyewitness identification may be known only to some jurors, or may be imperfectly understood by many, or may be contrary to the intuitive beliefs of most]; People v. Cornwell (2006) 37 Cal.4th 50, 79 [expert permitted to testify about stress, focus upon a weapon, the witnesss confidence in the identification and the problems of cross-racial identification].) Because these factors were present in this case, Edwards counsel certainly could have sought the admission of an expert witness to opine on the effect of these factors on the reliability of the identification.

Assuming arguendo no sound explanation existed for counsels failure to call an expert as to the effect of these factors, we assess whether Edwards suffered prejudice as a result. Thus we consider the merits to determine whether, if Edwards counsel had offered expert testimony on these matters, the trial court would have been required to admit it and whether its admission would likely have changed the result.

The trial courts ruling on whether to admit expert testimony is reviewed for abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 508.) When an eyewitness identification of the defendant is a key element of the prosecutions case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on the specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known or understood by the jury, it will ordinarily be error to exclude that testimony. (Peoplev. McDonald, supra, 37 Cal.3d at p. 377; People v. Brandon (1995) 32 Cal.App.4th 1033, 1053 [error to exclude proffered 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 where identity key issue and identification evidence not substantially corroborated].)

Here the eyewitness identification by Moreno of Edwards was a key element of the prosecutions case. But as in Sanders, Morenos testimony was not the only evidence linking Edwards to the crime. Morenos testimony was corroborated by other independent evidence, including Edwards admission that he was at the gym when the shooting occurred, his immediate flight from the scene,[6] his hiding in a trash can long after he had disposed of the contraband he claimed he was carrying, his unsubstantiated claims about firing a weapon a day or so before, and his demeanor during his police interrogation. While none of this evidence viewed separately may be substantial corroboration of the identification, when considered together it is sufficient to give the eyewitness identification reliability. Consequently, the trial court would not have erred in rejecting the expert testimony had it been offered by Edwards counsel.

In any event, no prejudice appears; it is not reasonably probable that a result more favorable to Edwards would have been reached in the absence of the exclusion. (People v. McDonald, supra, 37 Cal.3d at p. 376; People v. Watson (1956) 46 Cal.2d 818, 836.) During the course of the trial, counsel cross-examined Moreno concerning the accuracy and reliability of his testimony. As we observed elsewhere, Edwards counsel argued about the weaknesses and pitfalls of eyewitness identification. Furthermore, the trial court instructed the jury under CALCRIM No. 315 to consider several factors in evaluating eyewitness testimony, including the duration of time that the witness had to observe the suspect and the lighting conditions under which such observations were made, the effect of stress on the witness, the similarity or difference in race between the subject and the witness, and the degree of certainty of the witness. In addition, even had the expert testified about the effect of certain factors, he or she could only have been testifying to generalities and statistics and not as to whether particular factors [specifically] affected Moreno. (People v. Jackson (1985) 164 Cal.App.3d 224, 244.) Given these circumstances and independent corroborating evidence, it is not reasonably probable that a different result would have occurred had the expert been permitted to testify.

In sum because there could be a reasonable explanation for the action of Edwards trial counsel, or because Edwards has not shown prejudice, we reject his claim that the failure to request appointment of an identification expert constituted ineffective assistance of counsel.

B. Single Person Show-Up Identification

Edwards also complains his counsel was ineffective for failing to move to exclude the identification Moreno made after viewing Edwards at a single person show-up at the hospital. He asserts the circumstances surrounding the show-up were impermissibly suggestive and unfair. We disagree.

A violation of due process arising from an out of court show-up occurs if the pre-trial identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (People v. Sanders (1990) 51 Cal.3d 471, 508.) This depends on the totality of the circumstances surrounding the identification and confrontation. Where, as here, a pretrial identification is challenged, the defendant shoulders the burden to prove that the identification procedures were unfair or suggestive. In general, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness identification the identity of the person suspected by the police. (People v. Hunt (1977) 19 Cal.3d 888, 893.)

Including only one person in a show-up is not by itself, unduly suggestive. (People v. Ochoa (1998) 19 Cal.4th 353, 413; People v. Floyd (1970) 1 Cal.3d 694, 714 [the use of a single person line-up is not inherently unfair], overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) The burden is on a defendant attacking such an identification to show that the procedure was so unduly suggestive and unnecessary that the identification was not reliable. (People v. Ochoa, supra, 19 Cal.4th at p. 412.) Only if the defendant makes that showing does the burden shift to the prosecutor to show that the identification was nevertheless reliable and credible under the totality of the circumstances. The identification is not necessarily invalidated if the prosecution can show that under the totality of circumstances, the identification was reliable and credible, taking into consideration such factors as: (1) the witnesss opportunity to view the perpetrator at the time of the crime; (2) the witnesss degree of attention; (3) the accuracy of the prior description of the perpetrator; and (4) the level of certainty demonstrated by the witness. (People v. Ochoa, supra, 19 Cal.4th at p. 412.)

Here, the single person show-up was not unnecessary because it allowed Moreno to view Edwards as soon as possible without the necessity and delay of taking him into custody. An in-the-field show up . . . is generally an informal confrontation involving only the police, the victim and the suspect. One of its principal functions is a prompt determination of whether the correct person has been apprehended. [Citation.] Such knowledge is of overriding importance to law enforcement, the public and the criminal suspect himself. [Citation.]. (People v. Dampier (1984) 159 Cal.App.3d 709, 713.) In addition, the show-up here was not unduly suggestive, because it was at a setting less onerous than at a police station, and additionally Moreno was admonished beforehand.

Edwards complains, however, that the remarks by the police prior to the show-up compelled Moreno to choose him. Our review of the transcript from the trial and the preliminary hearing leads us to disagree. Moreno testified at trial that although he did not read the admonishment card prior to signing it the officer told him what it said and told him that the person they were bringing in may or may not be the shooter. Contrary to what Edwards suggests, Morenos trial testimony on this matter is not completely inconsistent with his testimony at the preliminary hearing. A fair reading of Morenos testimony from the preliminary hearing does not support Edwards contention that the police told him they were bringing in the person who shot him. According to Moreno the police told him they had a suspect and asked Moreno if he could identify him. On the record before us, we are not convinced the police procedures crossed the line.

In any event, the identification was reliable under the totality of the circumstances. Moreno had the opportunity to view Edwards for about a minute prior to the shooting in daylight, heard Edwards voice, and stated that he looked directly at Edwards and recognized his lips and declared his certainty of the identification. Furthermore, any weaknesses and inconsistencies in Morenos testimony were solely for the jury to evaluate. On appeal, we only consider whether the identification was inherently improbable or factually impossible. (People v. Allen (1985) 165 Cal.App.3d 616, 623 overruled on other ground in People v. Barry (1993) 16 Cal.4th 332, 338-339.)

In short, Edwards has not shown that the show-up was unfair. Had his counsel moved to exclude this evidence, the motion would have been properly denied. Consequently, he cannot demonstrate his counsel was ineffective for failing to bring a motion to exclude the pre-trial identification.

III.           Edwards Request for Counsel During His Police Interview

During the direct examination of Detective Pirooz, who questioned Edwards after his arrest, the prosecutor elicited testimony from the detective concerning the statements Edwards made to police concerning the shooting incident. Detective Pirooz testified that at the outset of the police interrogation he advised Edwards of his Miranda rights and that Edwards told the officer he understood his rights and agreed to speak with the officer. The prosecutor asked the detective a series of questions which elicited testimony concerning Edwards version of the events, including the admissions Edwards was present at the gym when the shooting occurred, and that he ran from police because he had marijuana cigarettes; and a statement that he had fired a weapon a day before in Diamond Bar.

The following exchange then occurred:

Prosecutor: Okay. Now, did you ask Mr. Edwards why he would be positively identified by the victim of the shooting if he wasnt the shooter?

Detective Pirooz: I did.

Prosecutor: And what did he say?

Detective Pirooz: He said, well, I am going to jail anyway. So I want to talk to a lawyer.

Although Edwards did not object to the question or move to strike the response, the prosecutor immediately changed the focus of the questions and asked a series of questions concerning gangs. Edwards request for a lawyer was not mentioned again during the trial.

On appeal Edwards asserts the prosecutor committed misconduct and Doyle error when she asked a question at trial which elicited the evidence Edwards had requested counsel during his police interview. Edwards also asserts his counsel was ineffective for failing to object to the prosecutors questioning. As we shall explain, whether Edwards complaint is styled as a claim of prosecutorial misconduct or as Doyle error, it did not result in prejudicial, reversible error.

A. Prosecutorial Misconduct

A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Specifically, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested the jury be admonished to disregard the impropriety. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998)17 Cal.4th 800, 820.)

Here based on a fair reading of the transcript we are not convinced the prosecutor either intended or necessarily anticipated the detective would respond to the question posed by disclosing Edwards had requested counsel during the police interrogation. Neither the line of questioning beforehand or immediately afterwards suggests the prosecutor was acting in an underhanded or deceptive manner. In any event, the mention of his request for counsel was brief and not raised again during the trial. In our view, an immediate defense objection to the prosecutor's question and a request for a curative instruction or admonition would have remedied any potential for the jury to construe or apply any of the complained-of evidence in an objectionable fashion. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.)[7] Thus, we conclude the prosecutor did not commit prejudicial misconduct.

B. Doyle Error

The United States Supreme Court has held that an accuseds silence following the giving of the warnings described in the majority opinion in Miranda v. Arizona (1966) 384 U.S. 436, 444-445 may not be used to impeach the defendants testimony at trial. (Doyle v. Ohio (1976) 426 U.S. 610, 616-619; see also Anderson v. Charles (1980) 447 U.S. 404, 407-408; People v. Quartermain (1997) 16 Cal.4th 600, 619.) Official advice pursuant to Miranda of a persons right to remain silent carries with it an implicit assurance that silence will carry no penalty. (Doyle v. Ohio, supra, 426 U.S. at p. 618.) Doyle stands for the more general principle that a persons silence in apparent reliance on Miranda advice cannot be used against him or her in a criminal trial. By extension, the prosecution also cannot use a persons refusal to answer questions or his or her invocation of the right to remain silent or the right to counsel. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1525; see also, People v. Coffmanand Marlow (2004) 34 Cal.4th 1, 65 [the prosecutor asked whether the defendant had asked for a lawyer when the police talked to him]; People v. Evans (1994) 25 Cal.App.4th 358, 367-369 [the prosecutor asked whether the defendant denied culpability when the defendant said he did not want to talk to the police]; U.S. v. Szymaniak (2d Cir.1991) 934 F.2d 434, 436 [the defendant was vague and did not answer questions and stated: Im in a lot of trouble and I want to speak to my lawyer]; Fields v. Leapley (8th Cir.1994) 30 F.3d 986, 990 [the defendant stated, I aint saying nothing and I wont talk to you about that without an attorney].)

Doyle error is waived absent a timely and specific defense objection at trial. (People v. Huggins (2006) 38 Cal.4th 175, 198; People v. Carter (2003) 30 Cal.4th 1166, 1207; People v. Hughes (2002) 27 Cal.4th 287, 332.) Although his trial counsel failed to interpose such an objection in the instant case, Edwards argues that if the claim of Doyle error was waived, his trial counsel was ineffective for failing to object to the prosecutors question and the detectives response.

Doyle error requires reversal of the judgment unless the error was harmless beyond a reasonable doubt under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Earp (1999) 20 Cal.4th 826, 855-858.) The California Supreme Court held: Under this test, the appropriate inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. [Citation.] (People v. Quartermain, supra, 16 Cal.4th at p. 621, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279, original italics.)

Though we are not convinced Edwards request for counsel was intentionally elicited by the prosecution and further note the evidence was not emphasized during the trial, the presentation of the Edwards request before the jury appears to violate Doyle. (See People v. Evans (1994) 25 Cal.App.4th 358, 362 [Doyle is violated when a single question is posed and a defense objection thereto is overruled].) In any event, even if disclosure of Edwards request constituted Doyle error it was harmless beyond a reasonable doubt. Given the evidence against Edwards, including the identification evidence, his conduct immediately after the shooting and his admission of being present at the scene we conclude the evidence of his request for counsel had no effect on the outcome of the trial. Moreover, the mention of his request for counsel was brief and not referred to again during the trial. Any error was harmless.

IV.           Cumulative Error

Edwards also seeks a reversal of his conviction based on the cumulative effect of the errors committed during the trial. However, based on our review of the record, we have found no serious, reversible errors in the trial. Consequently, reversal on this basis is unwarranted. (See People v. Millwee (1998) 18 Cal.4th 96, 168.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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[1]Doyle v. Ohio (1976) 426 U.S. 610.

[2] Moreno admitted that although he signed the admonishment form, he did not read it. He stated that the officer told him what it said.

[3] At the preliminary hearing the following exchange concerning the hospital identification occurred:

Q: Did the officer say I'm bringing a suspect so you can examine him to determine whether thats the person that shot you? What did he say?

Moreno: He justat first [the officer] was in there. And then like he got a call on the radio that they had caught the suspect or whatever. I don't know exactly the words they said, and then he came back after with the suspect.

Q: So youre in the hospital room. You hear this radio call. They got the guy that shot you. And they bring this black guy to you?

Moreno: They brought the guy that shot me.

Q: There were no other black guys that they brought in, right?

Moreno: No.

Q: They didnt do a line-up?

Moreno: No.

Q: They didnt tell you that the person they were showing you might or might not be the person who shot you?

Moreno: No, they didnt tell me.

Q: So you already knew in your mind that the black guy that was going to come through the door was the guy that shot you?

Moreno: I didnt know that it was going to be him.

Q: You already heard that they had captured the bad guy?

Moreno: No. They said we have a suspect. Could you identify him?

[4] The gym supervisor and Edwards friend Bryan Webb also testified that they saw Edwards at the gym that day, but conceded they were not with him the entire time. Webb also confirmed that Edwards had visited him several days before in Walnut, but also testified that Edwards did not tell him he had met someone in a park and fired a gun.

[5] CALCRIM No. 315 provides:

You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.

In evaluating identification testimony, consider the following questions:

        Did the witness know or have contact with the defendant before the event?

        How well could the witness see the perpetrator?

        What were the circumstances affecting the witnesss ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation [, and any other relevant circumstances]?

        How closely was the witness paying attention?

        Was the witness under stress when he or she made the observation?

        Did the witness give a description and how does that description compare to the defendant?

        How much time passed between the event and the time when the witness identified the defendant?

        Was the witness asked to pick the perpetrator out of a group?

        Did the witness ever fail to identify the defendant?

        Did the witness ever change his or her mind about the identification?

        How certain was the witness when he or she made an identification?

        Are the witness and the defendant of different races?

        Were there any other circumstances affecting the witnesss ability to make an accurate identification?

        [Was the witness able to identify other participants in the crime?]

        [Was the witness able to identify the defendant in a photographic or physical lineup?]

        [other relevant factors raised by the evidence.]

The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendant not guilty.

CALJIC No. 2.92 stated:

Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness identification of the defendant, including, but not limited to, any of the following:

[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]

[The stress, if any, to which the witness was subjected at the time of the observation;]

[The witness ability, following the observation, to provide a description of the perpetrator of the act;]

[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]

[The cross-racial [or ethnic] nature of the identification;]

[The witness capacity to make an identification;]

[Evidence relating to the witness ability to identify other alleged perpetrators of the criminal act;]

[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

[The period of time between the alleged criminal act and the witness identification;]

[Whether the witness had prior contacts with the alleged perpetrator;]

[The extent to which the witness is either certain or uncertain of the identification;]

[Whether the witness identification is in fact the product of [his] [her] own recollection;]

_____________________;] and

Any other evidence relating to the witness ability to make an identification.

[6] A defendants flight from the scene is relevant when identification of the perpetrator is an issue. (People v. Turner (1990) 50 Cal.4th 668, 694, fn. 10.)

[7] It is also possible that the lack of a contemporaneous objection was the result of a trial strategy, that is, defense counsel could have reasonably decided not to object to the response so as to avoid highlighting evidence in front of the jury. (People v. Kelly (1992) 1 Cal.4th 495, 540 [An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel].)