P. v. Haywood



















Filed 7/10/13
P. v. Haywood CA3













NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. PHARAOH BUB HAYWOOD, Defendant and Appellant.

C071389 (Super. Ct. No. 12F00833)

This appeal
is from defendant Pharaoh Bub Haywood’s second trial for being a felon in href="http://www.fearnotlaw.com/">possession of a firearm and negligently
discharging a firearm. His first
trial ended in a mistrial on those charges but with convictions on charges of href="http://www.mcmillanlaw.com/">evading a peace officer, resisting a peace
officer, and driving on a suspended license.

On appeal,
defendant raises five contentions of ineffective assistance of counsel and one
of cumulative prejudice based on his ineffective assistance contentions. Disagreeing with these contentions, we
affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

On a rainy
new year’s evening in 2011, a Sacramento police officer noticed a Chevrolet
“muscle car” driving with its lights off.
The officer turned on the overhead lights of his police car, but the
Chevrolet sped away. After a few
minutes, the Chevrolet spun out, and the driver, who was defendant, fled on
foot, jumping over some residential fences.
The officer, who had been chasing defendant, stopped and called for
backup when he heard a gunshot. The
backup officers found defendant a short time later in a nearby backyard. They could not find a firearm.

Within a
few hours of defendant’s arrest, a forensic police investigator took gunshot
residue test samples from defendant’s hands.
The samples were examined by forensic criminalist Jason Hooks under an
electron scanning microscope. On the
sample taken from defendant’s right palm, Hooks found four particles of gunshot
residue. From that finding, it was
Hooks’s opinion defendant fired a weapon, handled a weapon, or was in the
vicinity of a fired weapon. Eight days
later, a gun was found in a backyard approximately 44 feet from where defendant
was arrested.

DISCUSSION

Defendant
contends his counsel was ineffective in the following five instances: (1) failure to request exclusion of the href="http://www.fearnotlaw.com/">gunshot residue testimony because it was
unreliable; (2) failure to call an expert to challenge the scientific value of
Hooks’s gunshot residue testimony; (3) failure to adequately cross-examine
Hooks; (4) failure to challenge Hooks’s “lack of scientific expertise and
objectivity”; and (5) failure to introduce (instead of successfully excluding
from evidence) defendant’s misdemeanor convictions from his first trial and the
fact that marijuana was found near defendant when he was arrested. Defendant concludes his contentions with an
argument that these five instances of counsel’s deficient performance were
cumulatively prejudicial. As we explain,
we disagree on all points.

I

>Failure To Seek Exclusion Of Gunshot Residue
Testimony Based On Unreliability

Defendant
contends defense counsel was
ineffective because he failed to ask the court to exclude Hooks’s gunshot
residue testimony as unreliable based on People
v. Kelly (1976) 17 Cal.3d 24, 30.
“In Kelly, the [California]
Supreme Court held the admissibility of expert testimony based on ‘a new
scientific technique’ requires proof the technique is reliable.” (People
v. Therrian (2003) 113 Cal.App.4th 609, 614, fn. omitted.) “The technique is reliable if the proponent
can show,” among other things, “ ‘the technique has gained general
acceptance in the particular field to which it belongs.’ ” (Ibid.) Gunshot residue evidence has been deemed
reliable and admissible in California for more than three decades. (See, e.g.,
People v. Palmer (1978) 80 Cal.App.3d
239, 251.) In Palmer, the court approved the then-new technique of using a
scanning electron microscope to observe and identify gunshot residue
particles. (Id. at p. 250-254.) This was
the same technique Hooks used to identify the incriminating gunshot residue
particles here. A more than 30-years-old
technique (approved in a case that is still good law) can hardly be
characterized as new. Accordingly,
defense counsel was not ineffective for failing to object to this testimony as
unreliable. (See People v. Osband (1996) 13 Cal.4th 622, 678 [counsel not
ineffective for failing to raise a meritless objection].)

II

>Failure To Call An Expert To Challenge The
Scientific Value

>Of Hooks’s Gunshot Residue Testimony

Defendant
contends defense counsel was ineffective because he failed to call an expert to
challenge the scientific value of Hooks’s gunshot residue testimony. We disagree because defense counsel had a
rational strategy for not calling such an expert. (Strickland
v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694-695] [defendant
must overcome the presumption that the challenged conduct might be considered
sound trial strategy].) As detailed
in defendant’s hearing to replace his public defender in his first trial
pursuant People v. Marsden (1970) 2
Cal.3d 118, the public defender had explored and rejected defendant’s request
to hire a gunshot residue expert to challenge Hooks’s testimony. The public defender explained he had talked
with another gunshot residue expert and that calling that expert “would
probably make it appear to the jury that Jason Hooks from the district
attorney’s lab had done a very good job analyzing the [gunshot residue].” Thus, the public defender’s reasoning for not
calling an expert to challenge Hooks’s testimony provided a reasonable tactical
reason why defense counsel in this case chose the same course of action.

III

>Failure To Adequately Cross-Examine Hooks

Defendant
contends defense counsel was ineffective because he failed to cross-examine
Hooks on two points: (1) a Los Angeles
Times article reporting that the Federal Bureau of Investigation laboratory had
discontinued analyzing gunshot residue in its investigations because there was
cross-contamination of samples; and (2) a 2006 Minnesota trial court ruling
rejecting gunshot residue evidence as unreliable. We disagree on both points.

As to the
first, defense counsel asked Hooks at least 28 questions covering 16 pages of
testimony eliciting the implication that a secondary source of contamination
could have caused the gunshot residue evidence here. The questions covered the gist of the
article, namely, that cross-contamination due to somebody else touching the gun
or due to other particles could account for a positive test of gunshot
residue. Counsel’s performance was not
deficient simply because counsel chose this way of eliciting the evidence
instead of the way defendant now claims counsel should have.

As to the
second, defense counsel reasonably
did not cross-examine Hooks about the 2006 Minnesota trial court ruling because in 2009, the Minnesota Supreme Court
affirmed a trial court ruling that gunshot residue evidence was reliable. (State
v. Loving (Minn. 2009) 775 N.W.2d 872, 878-879.) Defendant’s second trial was held in
2012.

IV

>Failure To Challenge Hooks’s Qualifications

Defendant
contends defense counsel was ineffective because he failed to challenge Hooks’s
“lack of scientific expertise and objectivity.”
Not so, because there was no reasonable basis on which to challenge
Hooks’s expertise, and the record shows defense counsel had a reasonable
strategy for challenging Hooks’s objectivity.

Hooks’s
credentials did not provide reason for defense counsel to argue that Hooks was
unqualified. Hooks testified he had been
a criminalist for 14 years. He had a
bachelor of science degree in forensics with a minor in chemistry and had taken
several master’s courses in forensics and one on scanning electron microscopy
and microanalysis, which was used here.
His current area of expertise was gunshot residue analysis, for which he
had to undergo formal training that included reviewing the scientific
literature, discussing the field with other experts, studying known and unknown
gunshot residue samples, reviewing other scientists’ studies, and undergoing a
proficiency examination on gunshot residue analysis. He had testified as a gunshot residue expert
in four other cases. His credentials
were similar to, if not stronger than, the expert in Palmer, the case where the court approved the then-new technique of
using a scanning electron microscope to observe and identify gunshot residue
particles. (People v. Palmer, supra, 80 Cal.App.3d at pp. 254-255.)

To the
extent Hooks could have been alleged to have been biased, defense counsel
elicited that possible bias. At the very
end of cross-examination, defense counsel elicited that Hooks worked for the
district attorney’s office and that he had never testified as an expert for the
defense. This was a reasonable way to
show the jury Hooks may have been biased toward the People.

V

>Excluding Defendant’s Misdemeanor
Convictions

>And Marijuana Possession From Evidence

Defendant
contends defense counsel was ineffective because he successfully petitioned the
trial court to exclude from evidence his misdemeanor convictions from the first
trial, which included driving on a suspended license, and his alleged
possession of marijuana found near where he was arrested. Defendant claims counsel should have
petitioned to keep this evidence in because the prosecutor wanted to use his
flight to prove conscious possession of the firearm, and the fact that he was
driving on a suspended license and possessed marijuana could have provided an
alternative explanation for the flight.

Counsel had
a reasonable tactical reason for petitioning to exclude this evidence. The evidence ran the risk of prejudicing the
jury into thinking defendant’s flight-related misconduct was part of a larger
crime spree, and thus, the jury would have been more inclined to find defendant
guilty on the weapons charges. Defense
counsel feared that the jury would hear of these prior convictions and the marijuana
possession and would “impugn [defendant’s] character.” That in hindsight defendant feels counsel
should have pursued another strategy does not make the one pursued
deficient. Indeed, defendant’s
second-guessing of trial counsel’s strategy is impermissible under the
deferential review of counsel’s trial tactics that we undertake on a claim of
ineffective assistance. (>Strickland v. Washington, >supra, 466 U.S. at p. 689 [80 L.Ed.2d at
p. 694].)

VI

>There Was No Cumulative Prejudice

Defendant
contends the cumulative nature of defense counsel’s deficiencies were such that
when aggregated together, they prejudiced him.
As counsel was not deficient, there are no errors to accumulate for such
an analysis.

DISPOSITION

The
judgment is affirmed.









ROBIE , J.







We concur:







RAYE , P. J.







HOCH , J.