Filed 5/29/13 P. v. Gary CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
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THE PEOPLE,
Plaintiff and Respondent,
v.
DARTAGNAN ANDRE GARY,
Defendant and Appellant.
E055074
(Super.Ct.No. RIF10000840)
OPINION
APPEAL from
the Superior Court of
County. W. Charles Morgan,
Judge. Affirmed with directions.
Rodger Paul
Curnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steve Oetting, and Vincent P.
LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
Dartagnan
Andre Gary, the defendant, was charged with murder in the shooting death of
Jared D., on a street near a house where a party was held. The shooting followed a gang challenge to the
Gutta
was an associate. A jury convicted
defendant of first degree murder (Pen. Code,
discharged, causing death, in the commission of the crime (§ 12022.53, subd.
(d)), and the crime was committed for the benefit of a criminal street
gang. (§ 186.22, subd. (b).) Defendant was also convicted of a active
participation in a criminal street gang.
(§ 186.22, subd. (a).) He was sentenced
to an aggregate term of 50 years to life and appealed.
On appeal,
defendant argues (1) independent review of the record of in camera proceedings
pertaining to discovery of information regarding an ongoing investigation is
required; (2) his conviction, based upon prior inconsistent statements of
witnesses, violated his right of confrontation; (3) his conviction is not
supported by substantial evidence; (4) his due process rights were violated by
the admission into evidence of a witness’s photographic lineup identification;
(5) his trial attorney was ineffective for failing to object to allegedly
coerced statements made by a witness who identified defendant as the shooter;
(6) reading CALCRIM No. 223 constituted reversible error because it shifted the
burden of proof; (7) reading CALCRIM No. 224 misstated the prosecutor’s burden
of proof and constituted structural error for instructing the jury it must
determine whether defendant was innocent as opposed to not guilty; and (8)
defendant’s sentence on count 2 should be modified to conform with the oral
pronouncement. We remand for
resentencing on count 2, but otherwise affirm.
BACKGROUND
Prosecution
Evidence
On December 5, 2009, Sean Harper
and Shonna Minnifield hosted a party at their residence for Tyshonna Smith,
their high-school-aged daughter, on Arrow Creek Drive in the City of Perris,
California. Frederick Morehouse came to
the residence to drop off his nephew and his ex-girlfriend’s brother, but
stayed to help search youngsters coming into the house for weapons. The party began at approximately 8:00 p.m.
and there was a DJ playing dance music.
Morehouse was outside the house
with Sean and Shonna, along with Sean’s cousin Lamar Little and Lamar’s
girlfriend or wife, Catalina. Morehouse
marked the hands of attendees who paid a $2 cover charge. People were dancing inside the house. Some members of the Gutta Squad, a street
gang in Perris, were present at the party.
Jared D., the victim, was the last
person to arrive at the party; he came alone in a white car, paid his cover
charge, and went inside the house. After
a few minutes, Jared came right back out.
At some point, the adults at the
party became aware of some yelling down the street. Two or three Black males were on the sidewalk
approximately seven houses down, yelling “Fuck Gutta Squad†and “Where you all
from?†Sean Harper yelled out that there
was none of that going on, that it was a kids’ party, and directed party-goers
to go inside the house.
Jared D. exited the gate, and
shortly afterwards the adults outside heard several gunshots. The adults ran towards the house to make sure
everyone was all right when they heard the shots. They made everyone get down and away from the
windows. The DJ cut the music everyone
waited till they did not hear any more shots.
Four people left the party in a gray car after the shots were
heard. When the car left, they saw a
body in the street. Jared D. had been
shot.
Louis Soto, who lived on the same
street as the house where the party was held, was on the phone inside his house
when he heard the shots and looked out the window. He saw a person standing in the street with
what appeared to be a gun in his hand.
He also saw two or three people running.
The person holding the gun appeared to be African-American and wore a
hoodie. At approximately the same time
as Louis Soto made his observations, Erasmo Ulloa was driving to his home on
Arrow Creek Drive from work. He was stopped
at a stop sign at the corner of Arrow Creek Drive and Plum Leaf when he saw
four or five kids running in front of him.
Because two of them had already run past his car, Ulloa was only able to
observe two of the youths, but discerned they were African-American. Subsequently, he saw a body in the street
just south of his residence, outside the house where the party had been held.
The police responded to the scene
of the shooting within minutes and found the victim nonresponsive. Persons still in attendance at the party were
directed not to leave. Police
investigators interviewed everyone who was at the party. They learned that the defendant, known to
Tyshonna by the nickname “Dro,†had been at the party with three or four
friends. Defendant had arrived at around
9:00 p.m., but Tyshonna did not see him or his companions after about 11:00 or
11:30 p.m. According to Tyshonna,
defendant wore a black hoodie at the party.
Detective Campos was assigned as
the co-case agent to investigate the murder of Jared D. He interviewed party goers who were still at
the residence and learned that there were guys down the street yelling toward
the house at some point before the shooting.
He also learned the name of a person called “Dro†from Tyshonna and
another party guest. Tyshonna described
for Detective Campos what “Dro†was wearing, and mentioned he was wearing a
hoodie. Tyshonna told the detective that
Laishansie Red was outside and could give him more information.
The day after the shooting, Jerome
Williams called Rickey Brown and Raymond Stewart in a three-way call from the
jail. In that call, Rickey Brown tells
Williams that something happened the previous night, and explains that someone
came through “dissin’ the hood last night . . . . So one of the little homies got on him and
did what he did, and cuz dead.â€
Detective Campos interviewed
Laishansie Red, and then interviewed Houston Stalling at his home on December
21, 2009. Detective Campos learned that
Houston Stalling hung out with Gutta Squad, associating with members of that
gang. Detective Campos, using a ruse,
informed Stalling that he had learned from independent sources that Stalling
was seen running down the street with others, although no one had actually
revealed this information. Eventually
Stalling admitted that he had left the party with three other people, Rudy, Rickey,
and Raymond. Stalling also informed
Campos that he had heard someone down the street say, “fuck Perris, fuck Naps,
fuck Gutta, and fuck PMV.â€
name="_ftnref3" title="">[3]
Detective Campos felt that Stalling
was withholding information, so he communicated to Stalling that he was a
suspect. Campos was familiar with a
person named Clarence Brown, who was known as Rudy, but Clarence Brown was in
custody at the time of the shooting.
During the interview, Stalling gave different conflicting versions of
the events of the night of the shooting.
Initially, Stalling said he left the party alone; then he said he left
with Rudy, Rickey and Raymond, but that none of them were involved in the
shooting; finally, he said that Rudy was the shooter. Stalling was consistent in describing what he
and Raymond Stewart were wearing, but he changed the descriptions of what
Rickey and Rudy were wearing. After this
interview, Campos wanted to interview the three people mentioned by Stalling: Raymond Steward, Rickey Brown and Rudy.
Detective Campos interviewed
Raymond Stewart on December 23, 2009.
Stewart informed the detective that after the party, he went to Andre’s
house and described where Andre lived.
Detective Campos went to that location and found Andre’s residence on
January 12, 2010. The residence was
defendant’s residence. Detective Campos
interviewed defendant at the time and was informed by defendant that he was
aware of the shooting but that he was not at the party; instead, he was at his
girlfriend Alicia’s residence, although three people came to his house after
the party: Raymond and two others whom
defendant did not know. Campos prodded
defendant for the names of the other two individuals, but defendant refused; he
informed the detective that he had provided Raymond’s name because he had
already spoken to Raymond. Defendant
also indicated that he formerly associated with Gutta Squad, but that he had
stopped.
Detective Campos reinterviewed
Houston Stalling on January 12, 2010, at his high school, in order to obtain
more information about “Rudy.†Campos
took an array of photographs, and included defendant’s picture based on
Stalling’s description of Rudy, Tyshonna’s statement that defendant was at the
party, and Raymond Stewart’s statement that they had gone to defendant’s house
after the party. When he showed the
photographs to Stalling, Campos asked Stalling whom he recognized. Stalling pointed to defendant’s picture and
said he knew defendant from camp.
On February 8, 2010, Detective
Campos reinterviewed Rickey Brown, known as “Sneakâ€, who had been detained
after he was located during a vehicle stop.
During this interview, Campos confronted Brown with a statement he had
made during a recorded telephone conversation with Jerome Williams, a leader of
Gutta Squad, in which Brown stated that “Somebody came through dissing the hood
and little homie did what he did.â€
Rickey Brown’s versions of the
events changed. First he said that he
and “Dro†were walking to the party when someone in a white car yelled out
“Perris Locs Crips†and started shooting at the party. Then he said that somebody yelled out “fuck
Gutta Squad.†Rickey Brown initially
told Campos he had gone to the party with his cousin Alicia, but later he said
he went to the party with Dro, Houston and Raymond, also known as “Third.†Rickey Brown denied that any other Gutta
Squad members were present at the party, so he knew the people yelling the
challenges were talking to Brown and his group.
He then told the detective that the males yelling challenges had guns.
Detective
Campos pressed Rickey by explaining that there was a difference between killing
somebody and defending oneself, urging Rickey to explain what happened. He asked if any of his group had a gun that
night, which Rickey denied. Then
Detective Campos asked him, “[W]hat if one of those people told me
different?†Later, when Rickey protested
that he was being honest, Campos asked him why would Dro tell him something
different. When Rickey pressed him about
what Dro had said, Campos asked, “[W]hat would you say, if he told me that you
shot the boy?†By this time, Campos had
heard from two different people that Dro was at the party and suspected there
might not be a Rudy.
Rickey Brown was reinterviewed the
following day, February 9, 2010. Rickey
told investigator Angulo that he did not have anything to do with the crime,
but that his “homey†did it. Rickey
referred to “YG†as being with them the whole time and, when asked, explained
that YG was Dro. Rickey revealed that
when the other males yelled “fuck Gutta Squad,†he wanted to leave because they
were outnumbered, but Dro shot. Rickey
and Third (Raymond Steward) ran, Dro came afterwards, and they all went to
Dro’s house. Rickey Brown indicated that
he saw Dro as he shot the boy, and that he (Rickey) found out later that the
boy had died. Detective Campos showed
Rickey the photographic lineup and asked Rickey if he recognized anybody as the
shooter that night. Rickey pointed to
the picture in the number 6 position and said, “It was him.â€
After this interview
with Rickey Brown, Detective Campos reinterviewed Houston Stalling on February
10, 2010. Campos informed Stalling that
someone had given up a name. He also
informed Stalling that he knows there was no Rudy. The detective showed Stalling the same photograph
array he had shown Stalling on January 12, 2010, and asked him to identify the
shooter, telling him that one of his buddies said he was not going to go down
for something that someone else did.
Stalling acknowledged that the shooter’s photograph was in the
lineup. After the detective suggested
that if Stalling was being untruthful it was because he had something to hide,
Stalling pointed to photograph number 6, Dro.
Defendant was subsequently arrested.
While in custody, authorities intercepted a letter written by defendant
addressed to his father acknowledging his association with a gang.
The gang expert explained that
Jerome Williams, also known as “J Roc,†was a documented member of Gutta Squad
and had been convicted of three gang-predicate crimes. Raymond Stewart was an active, documented
member of Gutta Squad, and he went by various monikers, including “Deuce,â€
“Little Red,†and “Third.†Rickey Brown
is an active, documented member of Gutta Squad, and his moniker is “Sneak.â€
Gutta Squad comprises a group of
African-American males with ties to Los Angeles gangs, including 111
Neighborhood Crips, Six Deuce East Coast Crips, and Grape Street Crips. The primary activities of Gutta Squad consist
of committing robberies, burglaries, and assaults. The color purple and Colorado Rockies
baseball caps are associated with Gutta Squad.
In Perris, there are three different Crip gangs: Perris Locs, Neighborhood Perris Crips, and
Gutta Squad Mafia. The various Crip
offshoot groups do not necessarily get along, but they “squad up†when there
are problems with the homegrown Perris gangs.
The gang expert also reviewed a
letter defendant had written to his father in which defendant admitted he was
“doing this banging stuff†after he “walked on,†without getting “put on,†as
well as field identification cards showing defendant hung out with Gutta Squad
members at Copper Creek Park, known as Gutta Squad turf. Based on all the information available, the
gang expert opined that defendant was an active member of Gutta Squad.
Defense Evidence
Laishansie Red, who knew defendant
from school, was at the party. She saw
Houston Stalling outside the house with four other males, but she did not see
defendant. While outside the house, a
white boy came up to the gate in front of the house and asked if anyone from
Gutta Squad was there. One of Houston’s
companions said, “Yeah, we’re right here.â€
The white boy then said, “fuck Gutta Squad.†Approximately 10 to 12 minutes later, shots
were heard.
Frank Rodela, the defense
investigator, interviewed Alicia Hymes at her home in Perris. Alicia admitted she had attended the party on
December 5, 2009. Alicia stated she saw
Rickey Brown but she did not see defendant there. According to Alicia, three days after the
shooting, Rickey sent her a text message in which he admitted he shot the
boy. Previously, Alicia had said nothing
to Rodela about Rickey confessing.
Rodela interviewed Laishansie Red, who recognized Raymond Stewart but
not from the party, and did not recognize Rickey Brown as being at the
party. Rodela also interviewed Houston
Stalling who stated he had lied to Detective Campos so the detective would
leave him alone.
Defendant’s brother, Tykee Hall,
and his sister, Tatiana Hall, both testified that defendant was at home all
night on the date of the shooting and no one came by. Both siblings had gang ties but denied that
defendant was a gang member. Jerome
Williams, known as J Roc, formerly dated defendant’s sister and enjoyed a
leadership role in Gutta Squad. He
denied that defendant was a member of Gutta Squad although Jerome had invited
him to become a member. However, since
defendant’s arrest, Jerome developed a protective relationship towards
defendant, who was like a brother.
Criminal Proceedings
Defendant was charged with murder
(§ 187, subd. (a), count 1) and with active participation in a
further alleged that defendant had discharged a firearm causing death (§
12022.53, subd. (d)), and that the crime was committed for the benefit of a
criminal street gang. (§ 186.22, subd.
(b).) Defendant was tried by a jury and
convicted of both counts; the jury also returned true findings on both
enhancement allegations. Defendant was
sentenced to an aggregated term of 50 years to life (25 years to life for count
1, plus 25 years to life for the gun discharge enhancement; count 2 was stayed
pursuant to section 654). Defendant
timely appealed.
DISCUSSION
(1) Review of the Sealed Record of In Camera
proceedings.
Prior to
trial, the case was added onto the calendar to resolve discovery issues. The defense informed the court that at the
last minute, she received a call regarding additional discovery that the same
type of weapon as was used in the murder was discovered on two of the People’s
witnesses and requested disclosure of the identity of the witnesses. The People acknowledged that two prosecution
witnesses were suspects in a crime where a firearm was discharged, but did not
disclose the names of the suspects to the defense. The prosecutor requested an in camera
she knew because of the ongoing investigation.
The court conducted an in camera hearing and sealed the record. Afterwards, the court indicated there was no
relevant information to be turned over to the defense.
On appeal, defendant argues that we
should independently review the sealed transcript of the in camera
court’s ruling was correct. The People
do not oppose the request. We have
reviewed the sealed reporter’s transcript of the in camera hearing and found nothing discoverable.
(2) The Introduction of Prior Inconsistent
Statements Did Not Violate Defendant’s Sixth Amendment Right of Confrontation.
During
defendant’s trial, several witnesses, most of whom were members of the street
gang, Gutta Squad Mafia, testified in a manner that was inconsistent with prior
statements made to law enforcement investigators. As a consequence, the People proffered
evidence of the prior inconsistent statements, as well as other evidence
pointing to defendant’s guilt. Defendant
argues his conviction must be reversed because it was entirely based on
out-of-court statements, in violation of his Sixth Amendment right to
confrontation and his Fourteenth Amendment right to due process of law. We disagree.
We agree
that both the Constitution of the United States and the California Constitution
guarantee a criminal defendant the right to confront the witnesses against
him. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15.) The right of
confrontation is not absolute, however, and in appropriate cases must bow to
other legitimate interests in the criminal trial process. (People
v. Carter (2005) 36 Cal.4th 1114, 1172, and cases therein cited.) The Confrontation Clause guarantees only
“‘“an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.â€â€™â€
(United States v. Owens (1988)
484 U.S. 554, 559 [108 S.Ct. 838, 98 L.Ed.2d 951].)
The
opportunity to confront and cross-examine is not denied when a witness
testifies to his current belief but is unable to recollect the reason for that
belief. (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [106 S.Ct. 292, 88
L.Ed.2d 15].) The opportunity is not
denied when a witness feigns forgetfulness and is impeached with her statements
to police. (People v. Homick (2012) 55 Cal.4th 816, 861; see also
760, 766.)
Evidence
Code section 1235 expressly authorizes the admission of prior inconsistent
statements to impeach a witness’s testimony during an evidentiary hearing. Such statements are also admissible to prove
the truth of the matters asserted therein.
(People v. Green (1971) 3
Cal.3d 981, 985.) The Confrontation
Clause is not violated by admitting a declarant’s out-of-court statements, as
long as the declarant is testifying as a witness and subject to full and
effective cross-examination. (
158, 161 [90 S.Ct. 1930, 26 L.Ed.2d 489].)
Defendant
relies on In re Miguel L. (1982) 32
Cal.3d 100, which reversed a conviction for burglary where the conviction was
based solely on recanted out-of-court statements by his accomplice. In Miguel
L., the repudiated statement was one made by an accomplice, and the court’s
decision rested on the holdings of People
v. Gould (1960) 54 Cal.2d 621, 631, and In
re Johnny G. (1979) 25 Cal.3d 543, 547-548.
Gould had held that an
extrajudicial identification that cannot be confirmed by an identification at
trial is insufficient to sustain a conviction in the absence of other evidence
connecting the defendant with the crime.
(Gould, at p. 631.)
In Miguel L., the court acknowledged that a conviction may stand if
the extrajudicial statement was reiterated by the witness under oath at a
preliminary examination or other judicial proceeding, and there was evidence
from which the factfinder could credit the witness’s prior testimony over his
or her failure to confirm the extrajudicial statements at trial. (In re
Miguel L., supra, 32 Cal.3d at p. 106.)
However, the court followed the reasoning of Gould, adding that under section 1111, a conviction may not be
based solely on the uncorroborated testimony or statements of an
accomplice. (Id. at p. 109.)
corroboration of an out-of-court identification, was overruled in
257, 274-275, holding that the sufficiency of an out-of-court identification to
support a conviction was to be judged by the substantial evidence test. Subsequently, in People v. Williams (1997) 16 Cal.4th 153, 248, the California
Supreme Court extended Cuevas to
out-of-court statements by an accomplice, questioning the continued validity of
Miguel L., on the issue of whether an
accomplice’s extrajudicial statements were insufficient to prove that the
defendant committed the crime.
Defendant
does not contend that his conviction was improperly grounded on the testimony
of accomplices and lacked independent corroboration, within the meaning of
section 1111. His own out-of-court
statements showing he attempted to suborn perjury would provide independent
corroboration of any accomplice testimony in such a circumstance.
Instead, his argument is that the
admission of prior inconsistent statements of certain witnesses violated his
confrontation rights and rendered his trial unfair. Given the abundance of decisional authority
by the United States Supreme Court and the California Supreme Court, which have
expressly held that the admission of prior inconsistent statements does not
violate a defendant’s confrontation rights, we conclude the conviction was
constitutionally proper.
(3)
Substantial Evidence.
In a
related argument, defendant argues the conviction must be reversed because the
prior inconsistent statements do not constitute solid evidence. We disagree.
In reviewing a sufficiency
of evidence claim, our role is limited; we determine whether, on the entire
record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment
the existence of every fact the trier could reasonable deduce from the
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is unwarranted unless it appears
that upon no hypothesis whatever is there sufficient
conviction. (People v. Mason (2006) 140 Cal.App.4th 1190, 1199.)
Substantial evidence must be of
ponderable legal significance, reasonable in nature, credible and of solid
value. (People v. Concha (2008) 160 Cal.App.4th 1441, 1451.) While we must ensure that the evidence is
reasonable, credible and of solid value, it is the exclusive province of the
judge or jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends. (People
v. Smith, supra, 37 Cal.4th at p. 739.)
On review, we do not reevaluate the credibility of witnesses or resolve
factual conflicts; rather, we presume the existence of every fact in support of
the verdict that could reasonably be inferred from the evidence. (People
v. Booker (2011) 51 Cal.4th 141, 173, citing People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We
conclude there was substantial evidence to support the verdict. Notwithstanding the admission of prior
inconsistent statements of defendant’s gang associates as substantive evidence,
there was other evidence pointing to his guilt.
For instance, defendant requested that his mother communicate to his
girlfriend that she should ask the girl who hosted the party to say he was not
in attendance. The jury was permitted to
draw an inference of guilt from this statement.
(CALCRIM No. 371; People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Other evidence, completely independent of the
testimony of defendant’s fellow gang members, placed him at the party at the
time of the shooting and provided a motive for the shooting.
The jury could reasonably consider
the prior inconsistent statements along with the other evidence and conclude
that defendant shot the victim. There is
substantial evidence to support the verdict.
(4)
Violated b the Admission of Stalling’s Identification of Him From the Photographic Lineup.
Defendant
contends that the trial court erroneously admitted evidence that Houston
Stalling picked his photograph from a photographic lineup because the lineup
was unduly suggestive. He points to the
fact that Stalling was shown more than one photographic lineup, that
defendant’s photograph was included in both, and that Stalling testified he
felt pressured to identify defendant. We
disagree.
Due process
requires the exclusion of identification testimony only if the identification
procedures used were unnecessarily suggestive and, if so, the resulting
identification was also unreliable. (
123.) Convictions based on eyewitness
identification at trial following a pretrial identification by photograph will
be set aside on that ground only if the photographic identification procedure
was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.
(Simmons v. United States (1968)
390 U.S. 377, 384 [88 S.Ct. 967, 19 L.Ed.2d 1247].) The defendant has the initial burden of
establishing that the pretrial identification was suggestive. (People
v. Nguyen (1994) 23 Cal.App.4th 32, 38; People
v. Cooks (1983) 141 Cal.App.3d 224, 305.)
Defendant must show “unfairness as a demonstrable reality, not just
speculation.†(People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
A procedure
is unfair if it suggests, in advance of the identification by the witness, the
identity of the person suspected by the police. (People
v. Carter (2005) 36 Cal.4th 1114, 1164.)
Whether the identification technique employed in a given case violates
due process of law depends on the totality of the circumstances surrounding
it. (Stovall
v. Denno (1967) 388 U.S. 293, 301-302 [87 S.Ct. 1967, 18 L.Ed.2d 1199];
168.) However, there is no requirement
that a defendant in a lineup, either in person or by photograph, be surrounded
by others nearly identical in appearance.
(People v. Brandon (1995) 32
Cal.App.4th 1033, 1052, citing People v.
Wimberly (1992) 5 Cal.App.4th 773, 790.)
Nor is the validity of a photographic lineup considered unconstitutional
simply because one suspect’s photograph is more distinguishable from the others
in the lineup. (Brandon, at p. 1052, citing People
v. Johnson (1992) 3 Cal.4th 1183, 1215-1218.)
Frequently, claims of
suggestiveness involve a photo spread where the characteristics of the
photograph of the defendant are such that attention is immediately drawn to
that photograph. For instance, a six-man
lineup consisting of only one Oriental, the defendant, would be suggestive, as
would a lineup including only one black-haired person among light-haired
persons, or a tall defendant among short men, or a youthful defendant in a
lineup with men over 40 years of age.
(See United States v. Wade (1967)
388 U.S. 218, 232 [87 S.Ct. 1926, 18 L.Ed.2d 1149].)
Even where the procedure is
determined to be suggestive, the identification may still be found to be
reliable under the totality of circumstances.
(People v. Nguyen, supra, 23
Cal.App.4th at p. 39; People v. Contreras
(1993) 17 Cal.App.4th 813, 820.)
Once it is established that an identification procedure used was
unnecessarily suggestive, exclusion of identification testimony is required
only if the suggestive identification procedures tainted the in-court
identification. (People v. Yeoman, supra, 31 Cal.4th at p. 123.) Showing photographs of the defendant in
separate lineups conducted at different times does not necessarily render the
lineup procedure unduly suggestive. (
The question is not whether there
were differences between the lineup participants, but whether anything caused
the defendant to stand out from the others in a way that would suggest the
witness should select him. (
698.) We independently review the trial
court’s ruling that the pretrial identification procedure was not unduly
suggestive. (Id. at pp. 698-699.)
Defendant
does not point to any particular characteristic of the photographs of other
participants in the photographic lineup, or the photograph of the defendant,
that made the lineup impermissibly suggestive.
Nor does defendant point to any characteristic of the photographs that
would draw attention to his photograph.
Instead, he argues that the defendant’s photograph was the only
photograph that was included in each of the different photo arrays, and that
the officers pressured or badgered Stalling into making an identification. However, while the officers attempted to
garner Stalling’s cooperation and honesty after Stalling attempted to mislead
them in the investigation, the conduct of the detective did nothing to
communicate that the photograph of the defendant was the suspect, aside from
the fact that defendant’s photograph was included in the separate arrays, shown
to Stalling on separate occasions, a month apart.
None of the authorities cited by
defendant holds that showing a defendant’s photograph in different arrays,
without more to suggest that the defendant is the suspect, is unduly
suggestive. Further, where the witness
does not identify the defendant in court as the person who did the shooting,
the photographs could not have tainted the later in-court identification. (See People
v. Alexander (2010) 49 Cal.4th 846, 902.)
In the present case, Stalling was
interviewed four times and was first shown a photographic lineup in which
defendant’s photograph was included during the third interview. When asked if he recognized anyone, Stalling
indicated he recognized defendant from camp, but denied defendant was at the
party. A month later, Stalling was
interviewed for the fourth time, on February 10, 2010. During this interview, the detective
confronted Stalling with his false statement attributing the shooting to a
person named Rudy. Stalling was shown
another photographic lineup containing a photograph of defendant and Stalling
acknowledged that the shooter was in the lineup, but refused to say which
person it was. When the detective went
through each photograph individually, asking if that person was the shooter,
Stalling finally agreed that the sixth photograph, the picture of the
defendant, was that of the shooter.
There was nothing inherently
suggestive about showing a witness two separate photographic lineups containing
defendant’s photograph, a month apart.
Further, there is little likelihood that the photographic lineup
procedure tainted the identification because the witness was well acquainted
with the defendant and could have identified him without the aid of a
photographic lineup. Fearful of being
labeled a “snitch,†there was greater risk that Stalling would point to one of
the other photographs in order to throw suspicion away from his fellow gang
member.
The policy of excluding
identifications made from suggestive lineups is to prevent misidentification at
trial. Although there is no requirement
that the witness making the identification be an unknown stranger to the
defendant, as defendant argues, there is less risk of “irreparable
misidentification†where the witness is acquainted with the defendant prior to
viewing the lineup and refuses to identify him at trial. Given that the defendant had the burden of
showing that it was the photographic lineup procedures that led to Stalling’s
selection of his photograph as that of the shooter, as opposed to Stalling’s
familiarity with defendant and knowledge of defendant’s participation in the
crime, he has not met that burden here.
Instead, the real issue is not whether the lineup procedure itself was
suggestive, but whether Stalling’s statement that the defendant was the shooter
was involuntary, as the product of badgering and pressure by the detectives,
which we address separately, post.
(5)
Object to the Allegedly Coerced Statements Made by a Witness, Identifying
Defendant As the Shooter, Was Reasonable.
Defendant
asserts he was “victimized†by his trial counsel’s failure to object or move to
exclude the extra-judicial identification by Rickey Brown of defendant as the
shooter, which he asserts constituted ineffective representation of
counsel. He argues he had standing to
challenge the admission of coerced statements made by third parties and that
his counsel was ineffective for failing to object to Rickey Brown’s statement
that “it was Dro,†and Houston Stalling’s identification of defendant’s
photograph in the photographic lineup, identifying defendant as the shooter.
To demonstrate that his
was violated, defendant must satisfy a two-pronged test: He must show (1) performance below an
objective standard of reasonableness by his attorney, and (2) prejudice
sufficient to establish a reasonable probability he would have obtained a more
favorable result in the absence of counsel’s error. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [104 S.Ct. 2052, 80
L.Ed.2d 674].) There is a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. (
436-437.) Tactical decisions are
generally not deemed reversible, and counsel’s tactical decisions must be
evaluated in the context of all the available facts. (Strickland,
at p. 690.)
The failure to object to the
admissibility of evidence is normally considered a matter of trial
tactics. (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Roberts (2011) 195 Cal.App.4th 1106, 1131.) Where there is no sound basis for an
objection, counsel’s failure to object cannot establish ineffective assistance
of counsel. (People v. Lewis (2001) 26 Cal.4th 334, 359.)
Defendants have limited standing to
challenge the trial testimony of a witness on the ground that an earlier
out-of-court statement made by the witness was the product of police
coercion. (People v. Williams (2010) 49 Cal.4th 405, 452.) In fact, defendants generally lack standing
to complain that a police interrogation violated a third party witness’s Fifth
Amendment privilege against self-incrimination, or Sixth Amendment right to
counsel, nor may a defendant complain that law enforcement officers violated a
third party witness’s Fourth Amendment rights.
(Williams, at p. 452, citing
343.)
A defendant may assert a violation
of his or her own rights to due process of law and fair trial based upon third
party witness coercion; however, the rule refers to situations in which the
defendant can establish that trial evidence
was coerced or rendered by the prior coercion and that admission of this
evidence would deprive the defendant of a fair
trial. (People v. Williams, supra, 49 Cal.4th at pp. 452-453, citing
966, 969; People v. Badgett, supra,
10 Cal.4th at pp. 347, 348.)
At trial, neither Stalling nor
Brown inculpated the defendant, so defendant’s due process rights at trial were
not violated by inculpatory testimony induced by prior coercion. Nevertheless, we examine the asserted
coercion of each third party witness separately to determine whether defense
counsel’s failure to object to admission of involuntary statements of a witness
to impeach that witness at trial implicated defendant’s right to a fair trial.
a. Stalling’s Identification of Defendant
The
argument that Stalling’s identification of defendant as the shooter is made
without any authority or analysis of the conduct of the officers during the
interview. We assume defendant intended
to refer to conduct described in his previous argument, regarding the
admissibility of Stalling’s identification.
However, defendant has not sufficiently established that Stalling was
coerced, by improper interrogation methods, to identify defendant as the
shooter. At most, we discern that
Stalling was dishonest in his earlier interviews, identifying a fictional
person named “Rudy†as the shooter, causing detectives to reinterview him in an
effort to uncover the truth.
A photographic lineup was shown to
Stalling at the third interview, where Stalling implicated a person named
“Rudy,†who later turned out to be fictional.
Defendant’s photograph was included in this array because investigation
had revealed that defendant was present at the party with three other Gutta
Squad members, including Stalling. A
fourth interview was conducted after the investigators realized there was no
“Rudy.†Defendant’s photograph was
included again, because he was known to have attended the party (through
Tyshonna’s pretrial statement) and to be a member of Gutta Squad, leading
officers to suspect he was the person Stalling had referred to as “Rudy.†Campos was aware that the real “Rudy,†who
was a member of Gutta Squad, was incarcerated on the date of the shooting.
It was Stalling’s own dishonesty
which led to the successive interviews after the falsehoods were
discovered. Confronting a witness with
his false statements in an attempt to solve a murder is not “coercion.†Nor did counsel fail to object to the
admission of the identification evidence, as it was the subject of an in limine
motion. Further, because Stalling had a
failure of recollection at trial, his prior inconsistent statements were
admissible as impeachment. (Evid. Code,
§ 1235.) Even statements made by a
defendant, obtained in violation of the Miranda
are admissible against him as impeachment.
(Harris v. New York (1971) 401
U.S. 222, 225-226 [91 S.Ct. 643, 28 L.Ed.2d 1].)
The Williams rule permits a defendant to assert a violation of his or
her own right to due process of law and a fair trial based upon third party
witness coercion if the defendant can establish that the trial evidence was
coerced or rendered unreliable by prior coercion. (People
v. Williams, supra, 49 Cal.4th at pp. 452-453.) The burden rests upon the defendant to
demonstrate how the earlier coercion directly “‘impaired the reliability of the
testimony.’†(Id. at p. 453, quoting People
v. Badgett, supra, 10 Cal.4th at p. 348.)
Defendant does not argue that Stalling’s out-of-court statements, made
during interviews with detectives, directly impaired the reliability of his
in-court testimony.
There was no basis upon which
competent counsel could have objected to the admission of the extra-judicial
identification, particularly where it was offered as impeachment (prior
inconsistent statement) when Stalling, who was granted immunity, testified that
he did not recall defendant being at the party.
b. Rickey Brown’s Statement that “It Was
Droâ€
Defendant’s argument respecting the
failure to object to Rickey Brown’s extrajudicial statements points to several
circumstances. First, after Rickey Brown
was admonished for his interrogation, he was told that defendant had fingered
him as the shooter in order to elicit information about the shooting. Defendant acknowledges there was nothing
improper about that. He points to the
detective’s statements, admonishing Rickey that as a member of the group of
which the shooter was a part, he could be held responsible for murder, unless
Rickey explained the circumstances of the shooting. On more than one occasion, the detective gave
Rickey an opportunity to provide mitigating information to avoid prison. Detective Campos frankly informed Rickey he
was being detained as a suspect in the crime.
Eventually, Rickey asked why he was
being asked questions as if he had done something, and Campos reminded Rickey
that the group he was with did something wrong.
Campos gave Rickey some time to think and left the interview room to get
a cigarette for Rickey. When the
interrogation resumed, Campos reminded Rickey that he knew it was one of the
four members of his group. He told
Rickey, “It’s your life, man. You . . .
need to think about you.†At that point,
Rickey asked to call his mother so she could call a lawyer. However, rather than discontinue the
questioning, Campos continued his questions, eventually eliciting Rickey’s
statement that, “It was him,†while pointing to Dro’s (defendant’s) photograph.
Defendant
asserts that the continued questioning after Rickey made the request to contact
his mother, violated Rickey’s rights under Miranda
v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Rickey had previously waived his right to
remain silent and agreed to speak with the detective. Of course, a suspect may revoke his
asserts his right to silence before questioning ceases. (People
v. Martinez (2010) 47 Cal.4th 911, 948, citing People v. Stitely (2005) 35 Cal.4th 514, 535; People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421.) Assuming Rickey
intended to revoke his waivers, his request to speak to his mother did not
unambiguously require the cessation of an interrogation. (People
v. Nelson (2012) 53 Cal.4th 367, 383.)
However, Rickey’s reference to his mother contacting an attorney may
constitute an ambiguous request for counsel which Campos should have
clarified. (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 217, citing
181.) The detective should have
attempted to clarify whether Rickey intended to assert his right to remain
silent at that point.
As to the
question of whether Rickey’s statements were the product of coercive police
conduct, we observe that courts have prohibited only those psychological ploys
which, under all the circumstances, are so coercive that they tend to produce a
statement that is both involuntary and unreliable. (People
v. Williams, supra, 49 Cal.4th at p. 436, quoting People v. Smith (2007) 40 Cal.4th 483, 501.) Police deception does not necessarily
invalidate an incriminating statement. (
where an officer falsely tells a suspect that his accomplice has been captured
and confessed (Frazier v. Cupp (1969)
394 U.S. 731, 739 [89 S.Ct. 1420, 22 L.Ed.2d 684]), where the officer implied
he could prove more than he actually could (People
v. Jones (1998) 17 Cal.4th 279, 299), or where officers repeatedly lied,
insisting they had evidence linking the suspect to a homicide. (People
v. Thompson (1990) 50 Cal.3d 134, 167.)
Here, the
tactics employed by the detectives were no more coercive than the examples
provided above which courts have found do not invalidate an incriminating
statement. Thus, even assuming that
Rickey’s reference to his mother contacting an attorney constituted an
invocation of his Miranda rights, the
statements made to the detective were properly admissible for
v. New York, supra, 401 U.S. at p. 224; People
v. Peevy (1998) 17 Cal.4th 1184, 1191-1202.)
Competent counsel, aware of such
holdings, would realize that an objection would be futile, and would reasonably
decide not to object. There was no
ineffective assistance of counsel.
(6) CALCRIM
No. 223 Does Not Shift the Burden of Proof.
Defendant
argues that the court committed reversible error by reading CALCRIM No. 223 to
the jury. He asserts that this
instruction shifted the burden of proof and undermined the presumption
innocence by informing the jury that direct and circumstantial evidence are
acceptable types of evidence to prove or disprove elements of a charge. Defendant argues that his language implied
that the defendant was required to disprove the charge, in violation of his due
process rights. We disagree.
CALCRIM No.
223 does not mention the burden of proof, which was addressed in a separate
instruction. (See CALCRIM No. 220, which
told the jury the presumption of innocence requires the prosecution to prove
the defendant guilty beyond a reasonable doubt.) Nor does it state that a defendant must prove
or disprove anything. “Reasonably read,
the instruction cautions only that neither direct nor circumstantial evidence
should be accorded greater weight simply because it is direct or circumstantial
evidence.†(People v. Anderson (2007) 152 Cal.App.4th 919, 930.) As such, it does not “undermine the
reasonable doubt standard or presumption of innocence.†(People
v. Smith (2008) 168 Cal.App.4th 7, 18, citing People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187;
101, 117-118.)
Defendant
has failed to sustain his burden of establishing that the language of CALCRIM
No. 233 shifts the burden of proof.
(7) CALCRIM No. 224 Does Not Misstate the
Prosecutor’s Burden of Proof.
In a
separate argument, defendant argues that CALCRIM No. 224 instructed the jury to
determine whether defendant was innocent rather than not guilty, misstated the
prosecution’s burden of proof and constituted structural error. He also argues that there is a conflict
between CALCRIM Nos. 220 and 224. We
disagree.
Defendant’s
arguments fail to cite any of the published cases which have affirmed the
constitutional correctness of the instructions.
His arguments have been rejected on multiple occasions. (People
v. Ibarra, supra, 156 Cal.App.4th at pp. 186-187; People v. Anderson, supra, 152 Cal.App.4th at pp. 931-934; see also
People v. Smith, supra, 168
Cal.App.4th at p. 18.) We agree with the
conclusions of these authorities and do not find any discussion of former
CALJIC instructions to be helpful.
(8) Defendant Must Be Resentenced on Count 2
Where the Court’s Intention Is Unclear from the Record.
At
sentencing, the court imposed a term of 25 years to life for count 1. Referring to the enhancements to count 1, the
court stated “As to the 186.22(b)(5) allegation, along with the 12022.53(d)
allegation having been found true, that shall add an additional 25 years to
life, for a total sentence of 50 years to life.â€
choose the preferred mid term of 3 years in state prison.†The court then stayed the term for count 2
pursuant to section 654. On appeal,
defendant argues that the court intended to impose a sentence of two years for
count 2, since that is the midterm.
Respondent disagrees because the abstract reflects the three-year term
orally pronounced by the court.
Where
sentencing error involves the failure to state reasons for making a particular
sentencing choice, including the imposition of consecutive terms, reviewing
courts have declined to remand cases where doing so would be an idle act that
exalts form over substance because it is not reasonably probable that the court
would impose a different sentence. (
861, 889.) However, resentencing is
appropriate where the trial court’s intention is not clear from the record, to
allow it to clarify its intention. (See
609, 616-617; see also People v. Gamble (2008)
164 Cal.App.4th 891, 901 [record did not disclose whether trial court would
have exercised its discretion to impose a concurrent term for one count if it
had known it had such discretion, requiring remand].)
We cannot
say with certitude whether the court intended to impose the middle term (two
years), or whether it intended to impose the three-year term it orally imposed. We therefore remand for clarification.
DISPOSITION
The
convictions are affirmed. The matter is
remanded for resentencing on count 2, and in all other respects, the judgment
is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P
J.
We concur:
McKINSTER
J.
CODRINGTON
J.
“Gutta Squad Mafia†and “Gutter Squad Mafia.â€
Our research has revealed the existence of a rap group called “Gutta
Squad.†We also found an entry for
“Squad Gutta Boyz†in the Urban Dictionary
http://www.urbandictionary.com/define.php?term=squad+gutta+boyz [as of May 31, 2013], which contains the
following definition: “A group of
wannabee [sic] thugs from Ann Arbor,
MI that sell [sic] marijuana, break
into cars, rob drunk students and are constantly arrested by the police. They believe they are very clever and ‘hard’,
[sic] however, they often cry like
bitches when arrested.†Finally, Wiki
Answers responds to the question, “What gangs are in Perris,
CA?†by listing the Perris Crips and the
Gutta Squad Mafia, along with the Perris Locs and the Frontline Perris
Locs.
(http://wiki.answers.com/Q/What_gangs_are_in_perris_ca [as of May 31,
2013.]) We therefore conclude that the
correct spelling of the gang’s name is “Gutta.â€
Penal Code unless otherwise indicated.
