P. .v Gonzalez

Filed 12/19/08 P. .v Gonzalez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Luis Gerrardo Gonzlez, the defendant herein, already had a long record of felony convictions when he went on a crime spree in Palo Alto on June 26, 2006. On that day he burglarized a house, also robbing the resident at gunpoint, and stole two cars, carjacking the second one at gunpoint. Convicted of a number of crimes, he was sent to prison for the rest of his life.

On appeal, Gonzlez asserts that the trial court misinformed the jury about how to consider eyewitnesses identification of him and that there was no legal basis to find him guilty of illegally possessing ammunition.

We agree with Gonzlezs second contention and will reverse the judgment on the ammunition charge. Otherwise we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted defendant of first degree burglary (Pen. Code, 459-460, subd. (a)),^[1]two counts of carjacking ( 215), possession of a firearm by a convicted felon ( 12021.1, subd. (a)), possession of ammunition by a convicted felon ( 12316, subd. (b)), and receiving stolen property ( 496, subd. (a)), with personal firearm use allegations ( 12022.53, subd. (b)) regarding the two carjacking charges. Defendant admitted having suffered three prior strike convictions and three prior serious felony convictions, and that he had served eight prior prison terms. ( 667, subds. (a), (b)-(i), 667.5, subds. (a), (b), 1170.12.) The trial court sentenced defendant to 128 years to life, consecutive to an 86-year determinate term, in state prison.

I. Prosecution Case

We will leave until later a detailed description of John Nevess identification of defendant and items associated with him. Aside from evidence belonging to that category, the prosecutions case presented the jury with the following evidence:

The prosecution alleged that defendant committed violent takings of property from two victims on June 26, 2006. The first victim, Neves, returned to his Palo Alto home for lunch about 2:00 p.m. on that day. He saw a mysterious bicycle on the front porch and soon noticed a broken window. At that moment, a masked man wearing a bicycle helmet opened the front door. The man pointed a revolver at Neves and said,  [t]his is a real gun  and words to the effect of  I will use it  or  I know how to use it.  Neves collapsed out of fright. The man added:  Did you have to come home today  and  spoil the whole thing?  He held Neves down, pressed the gun into his cheek, and obtained his car keys and wallet. He extracted $35 to $45 in cash and discarded the wallet.

The man then uttered words to the effect of  Lets go back inside the house.  Neves got up and made as if he was about to go inside, but then, seizing a momentary opportunity, ran away yelling for help. As he continued his flight, he saw his assailant drive off in Nevess green Toyota pickup truck and noted that the bicycle was no longer visible.

Responding police officers discovered a bag on the porch that contained a sock, which in turn contained a speed loader with bullets for reloading a revolver.

Corey Taylor saw Neves running down the street and heard him yelling. He saw someone enter the truck in front of Nevess house, drive across the lawn, through bushes and over the curb, and proceed down the street. Taylor described the driver as tall with a medium build and wearing a full-faced bicycle motocross (BMX) style bicycle helmet, a long-sleeved dark shirt with a black vest over it, dark pants, dark boots, and gloves. He observed the man only for a few seconds. Because of the drivers full-faced bicycle helmet, Taylor did not get a good look at his face, and he could not discern even his race or ethnicity. The helmet was dark.

Michael Bruce was with Taylor and so also witnessed the incident. After Neves ran away, Bruce saw a man come from the house, throw a bicycle into the bed of a green truck parked in front, and drive off. He did not get a good look at the man; he recalled that he wore a bicycle helmet, though he could not perceive its type or style or match it to a bicycle helmet marked as Peoples Exhibit 1. At that point, Bruce was calling 9-1-1.

The second victim that day was Caroline Cooke. About 2:20 p.m. she was having lunch in her car, a red Toyota, when an armed dark-skinned man told her to get out and surrender the vehicle. The man had masked his face but Cooke could see his eyes and his short black hair. She thought he was about five feet nine inches tall and had a slender build.

On viewing a photographic lineup, Cooke thought the men in photographs two and three were possibilities, with number two (who was defendant) the stronger possibility. At trial she recalled telling police that the man was a Hispanic male. She thought she said he was in his twenties or thirties.

Officer Green was responding to the carjacking of Nevess truck when he received a report about the carjacking of Cookes car. At that moment, he saw the car and turned around to pursue it. He soon discovered that the car, now unoccupied, had crashed into a tree. A gun case was next to the drivers side door. Nearby observers indicated the direction in which the driver had run, but the police were unable to find him.

Detective Jenkins examined the crime scene, including the damaged car. He swabbed it for possible deoxyribonucleic acid (DNA) evidence.

About 3:00 a.m. on the day after the crimesi.e., about 12 hours after the crime spree endedOfficer Burger was leaving the police departments fueling station in Palo Alto when he saw defendant holding a red and black bicycle with a front basket facing some low bushes near the exit of the fueling station. The bicycle was the one depicted in Peoples Exhibit 7. Burger and Officer Holler made contact with defendant. While Holler talked to defendant, Burger noticed a black plastic bag in the bushes that was about a foot from where defendant had been standing when the officers first saw him. Burger picked up the bag. He could not see what was inside, but he felt a pistol grip. He put the bag down and drew his weapon, then asked Officer Holler to arrest defendant. At that point, Burger had not removed the gun from the bag or said anything about a gun, but defendant said to Burger,  You are not going to lay that pistol on me, are you? 

Carla Galioto identified the bicycle photographed as Peoples Exhibit 7 as one stolen from her son on October 6, 2004. The bicycle was red with a black seat, but it did not have a basket when stolen, and it now had much more wear and tear.

Sergeant Bonilla interviewed defendant on the day he was arrested. A compact disc recording of a portion of his interview was played for the jury. In the interview, defendant said that he had had the bicycle for about a week and that he had bartered a small quantity of crack cocaine for it. He bartered it from a Mexican whom he did not know. He initially told the barterer that he did not want a bicycle from the neighborhood where he lived.

A criminalist analyzed evidence containing DNA, including the sock found inside the bag on Nevess porch and an airbag that deployed in Cookes car after the carjacker crashed it. The analysis showed defendant to be a major contributor to the DNA on the sock and the sole contributor to the DNA on the airbag.

II. Defense Case

The defense theory was that defendant did not perpetrate the crimes. The defense argued that Neves was a poor eyewitness and that the DNA evidence could have been contaminated or the DNA test results misinterpreted.

Defendant did not testify. Officer Preheim, however, testified on behalf of defendant. Officer Preheim showed Neves the bicycle the police recovered. Because Neves thought the one he saw on the day of the crimes was a different color, he could not identify it. Nor did Neves say that the bicycle he saw that day had a basket.

DISCUSSION

I. Instructing on Eyewitness Identification Reliability

Defendant claims that the trial court violated his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and his right to jury trial under the Sixth Amendment thereof when it neglected to instruct the jury that it should take into account a witnesss ability to identify a perpetrator in a photographic lineup in considering the reliability of the witnesss identification of a suspect. We do not agree.

A. Factual Background

Nevess testimony showed a number of incongruities between his recollection of events and other evidence before the jury.

With regard to defendant himself, Neves testified that his assailant was wearing prescription glasses and a blue bandana over his mouth and the lower part of his nose. The man was some two to four inches shorter than Neves, who was five feet nine and a half inches tall. He had black hair, dark brown eyes and medium skin tone, was of medium build, and was wearing stylish denim pants and a dark blue plaid shirt. Despite defendants masking of his countenance, looking at him in court Neves testified that he was the assailant that day. He explained that he was able to see many parameters or qualities of the assailants face notwithstanding the coverings.

Neves agreed that his identification was not certainhe described there being a margin of errorbecause he could not see large portions of his assailants face, obscured as it was by the bicycle helmet and bandana. Nevertheless, he strongly believed that his identification of defendant in court was accurate.

Testimony by Neves and a police officer provided evidence that Neves viewed a lineup consisting of pictures of six possible suspects in separate photographs on June 29, 2006. One of the photographs was of defendant. Although Neves told the interviewing officer that photographs of three individuals in the lineup had similar features to those of his assailant, he did not select defendants photograph, which he described in court as being [n]ot an exact replica. He was still upset at the time he viewed the lineup.

Nevess testimony was also at variance with other evidence concerning the bicycle and bicycle helmet associated with the crimes.

Neves, in court, identified the bicycle depicted in Peoples Exhibits 7 and 8 as the one he saw that day. At the same time, however, he acknowledged that he had told the police the bicycle was blue or black, whereas Carla Galioto, whose sons bicycle it was, testified that it was red. Neves had been more focused on the large basket that appeared to contain a heavy object in a bag. Contrary to testimony the jury would later hear from Officer Preheim, Neves was confident that he had told the police that the bicycle had a basket. He did not recall whether he saw a photograph of the bicycle shortly after the incident, but he thought he had seen the actual bicycle at the police department. When an officer showed him the seized bicycle during the investigation, Neves said,  This doesnt look exactly like the bike that I remember. 

Neves testified that the bicycle helmet marked as Peoples Exhibit 1, which was not a full-faced BMX-style helmet of the type defendant was seen wearing while fleeing from the Neves residence, looked like the bicycle helmet he saw on his assailant. His assailant was wearing a typical bicycle helmet.

Corey Taylor, who saw the perpetrator leave the scene of the crimes against Neves, did not think the helmet depicted in Peoples Exhibit 1 was the same as the one the perpetrator wore, because the perpetrators full-faced BMX-style helmet covered more of the head and face.

B. Legal Analysis

The trial court gave an instruction on eyewitness identification of defendant that was based on the CALCRIM No. 315 pattern instruction. The pattern instruction states, In evaluating identification testimony, consider the following questions, followed by 16 bulleted questions presenting factors bearing on the witnesss ability to make an identification. Three of the 16 bulleted questions are marked by brackets, meaning that they should be read to the jurors only when applicable to the evidence before them. Defendant contends that the court erred by omitting one bracketed question from the instruction given to the jury: Was the witness able to identify the defendant in a photographic or physical lineup? He argues that the eyewitness instruction was not responsive to the evidence and was misleading in that it implied that only the listed questions should be considered.

Defense counsel stated on the record that he was satisfied with the wording of the instructions the trial court had given the jury. Specifically, the trial court stated, I believe the three of us agreed on the appropriate instructions and defense counsel did not disagree; rather, counsel acknowledged that he had not requested any instruction that the court had declined to give. Because defendant failed to lodge any objection below to the lacuna in the challenged instruction and instead affirmatively agreed to the instructions as given, including the version of CALCRIM No. 315 that the jury received, he did not preserve a claim for appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326; cf.  1259.)

The claim also fails on its merits. The trial court had no sua sponte duty to instruct on factors to consider in evaluating eyewitness identifications of defendant. A trial court has no duty to instruct pursuant to CALJIC [No.] . . . 2.92 on its own motion. (People v. Rogers (2006) 39 Cal.4th 826, 906.) CALJIC No. 2.92, like CALCRIM No. 315, is an eyewitness-identification-of-the-defendant pattern instruction. Accordingly, the commentary to CALCRIM No. 315 states that part or all of the instruction should be given, but only if requested.

When the trial court gave the instruction, it told the jury to consider: Were there any other circumstances affecting the witnesss ability to make an accurate identification? The giving of this catchall language told the jurors that they could consider anything casting doubt on a witnesss ability to identify defendant. (See People v. Golde (2008) 163 Cal.App.4th 101, 119.) Nevess identification of defendant was, as we have noted, precarious in certain respects.

Defendant next claims that he was denied the effective assistance of counsel because counsel failed to request the bracketed instruction.

A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendants claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)

On the record before us (see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), defendant does not show prejudice.  When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction,  we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.    (People v. Ayala (2000) 24 Cal.4th 243, 289.) The same test applies under California law. (People v. Clair (1992) 2 Cal.4th 629, 663.) There is no reasonable likelihood that the instruction led the jury to ignore relevant evidence, and there was abundant evidence that Neves was a poor eyewitness in important respects. The instruction as given signaled the jury to consider Nevess quality as an eyewitness even beyond the catchall any other circumstances language. It specifically instructed the jurors that they could consider How well could the witness see the perpetrator? What were the circumstances affecting the witnesss ability to observe . . . ? Was the witness under stress when he or she made the observation? Was the witness asked to pick the perpetrator out of a group? followed immediately by Did the witness ever fail to identify the defendant? and finally How certain was the witness when he or she made an identification?

Finally, much other evidence showed defendant to be the assailant.

Accordingly, even had the court given the bracketed pinpoint instruction on Nevess ability to identify defendant in a lineup, there is no reasonable probability that the result would have been different. Defendant was not denied the effective assistance of counsel.

II. Conviction of Illegally Possessing Ammunition

Defendant contends that because there was insufficient evidence to support his conviction of possession of ammunition by a convicted felon ( 12316, subd. (b)), his conviction on that count violates the due process guaranty of the Fifth and Fourteenth Amendments to the United States Constitution. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.) Specifically, he contends there was insufficient evidence that he was a person prohibited from possessing ammunition. The People concede that defendant is correct. We agree with the parties and will reverse the judgment on this conviction.

At trial, defendant stipulated that he had previously been convicted of a felony for purposes of the crime charged in count six, the section 12316, subdivision (b), charge. To find defendant guilty of count six, the jury was instructed that it must find, among other elements of the crime, that he had previously been convicted of a felony, but without specifying the type of felony. The instruction further stated, The defendant and the People have stipulated, or agreed, that the defendant was previously convicted of . . . a felony.

The information charged defendant with violating section 12316, subdivision (b), by possessing ammunition while he was prohibited from owning and possessing a firearm under section 12021.1, with a predicate felony of violating section 529, i.e., criminally false impersonation.

Subdivision (b)(1) of section 12316 provides, as relevant here: No person prohibited from owning or possessing a firearm under Section . . . 12021.1 . . . shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.

Section 12021.1 prohibits anyone convicted of specified offenses to possess a firearm. (Id., subds. (a), (b).) As defendant observes, section 529 is not one of the offenses specified in section 12021.1. Because he could not have been convicted of count six as charged, his conviction under section 12316, subdivision (b), must be reversed.

DISPOSITION

The judgment is reversed with regard to defendants conviction of possession of ammunition by a convicted felon (Pen. Code,  12316, subd. (b)). The trial court is directed to prepare an amended abstract of judgment to reflect this change and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P. J.

McAdams, J.

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^[1]All statutory references are to the Penal Code unless otherwise indicated.