P. v. Machuca & Mojarro

Filed 9/27/07 P. v. Machuca & Mojarro CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed.

Barry O. Bernstein, under appointment by the Court of Appeal, and Alison Minet Adams, for Defendant and Appellant Henry Alfredo Machuca.

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Joshua Joseph Mojarro.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants Joshua Joseph Mojarro and Henry Alfredo Machuca^[1]appeal from the judgments entered following a jury trial that resulted in their convictions for second degree robbery. Mojarro was sentenced to a term of 15 years in prison; Machuca was sentenced to 13 years.

Mojarro and Machuca contend the trial court erred by refusing their proposed special instruction regarding eyewitness identification. Mojarro further urges the trial court erred by allowing the People to use an incomplete chart during rebuttal argument, and committed Blakely/Cunningham^[2]error by imposing an upper term sentence. Machuca argues his trial counsel was ineffective in a variety of ways. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Nicholas Paredes lived at home with his parents in Alhambra. On November 10, 2004, at approximately 2:00 a.m., Nicholas^[3]was seated in his car outside his house, looking for a compact disc. Suddenly, he was pulled out of the car by Machuca and Mojarro, who stood on either side of him. Machuca asked Nicholas if he had any money or jewelry. Nicholas looked at him incredulously. Machuca pulled a gun from his sweatshirt and pressed it against Nicholass upper lip. Meanwhile, Mojarro pulled a second gun, cocked it, and held it four or five inches from Nicholass cheek. Nicholas put his hands up and told appellants to take whatever they wished. Appellants went through Nicholass pockets and wallet, which contained three $100 bills and possibly one $50 bill. Mojarro asked whether Nicholas had any more money or jewelry. Mojarro entered Nicholass car and removed compact discs from the center console.

Machuca and Mojarro then ran down the street and entered the back seat of a burgundy or maroon four-door sedan that was waiting nearby. The car had a messed up left quarter panel. A cloth had been placed over the panel and wrapped with tape.

Police were summoned. Nicholas described the robbers as two male Hispanics wearing black hooded sweatshirts, dark baseball caps, and dark pants. One had a mustache and wore glasses with a metal or chrome frame, and sported a diamond earring. The second suspect was approximately 55 tall and had a stocky build.

Later that morning, Nicholass father, Charlie Paredes, visited a nearby Ralphs market. He saw a maroon four-door sedan with a damaged quarter panel matching the description of the getaway car his son had given. Mojarro, Machuca, and another man were in the car; Charlie believed they matched the description of the perpetrators given by Nicholas to police. Charlie watched and waited as the vehicles occupants entered the market. Charlie followed them into the store and asked the store clerks to stall them if they attempted to leave. Charlie encountered Machuca in the store and, based on Machucas silver glasses and attire, concluded Machuca was one of the robbers. Charlie exited the store and summoned police.

Police detained Mojarro, Machuca, and the third man while Nicholas traveled to the store. In a field showup conducted outside the Ralphs market, Nicholas identified Machuca and Mojarro as the robbers; he also identified their car as the getaway car used in the robbery. He told officers, how could you forget a face that almost could have tooken [sic] your life away. After the positive field identification, Mojarro and Machuca were arrested. They each possessed a $100 bill.

Nicholas subsequently identified appellants as the robbers at the preliminary hearing and at trial.

2. Procedure.

Trial was by jury. Appellants were convicted of second degree robbery (Pen. Code,  211).^[4]The jury found true allegations that Mojarro and Machuca personally used firearms during commission of the offense ( 12022.53, subd. (b)), and that a principal was armed with a firearm ( 12022, subd. (a)(1)).

Machuca was sentenced to the midterm of three years, plus 10 years for the section 12022.53, subdivision (b) enhancement, for a total term of 13 years in prison. Mojarro was sentenced to the upper term of five years, plus an additional 10 years on the section 12022.53, subdivision (b) enhancement, for a total term of 15 years in prison. The trial court imposed court security assessments, crime prevention fines, restitution fines, and parole revocation fines on both defendants.

Both defendants appeal. We ordered the appeals consolidated.

DISCUSSION

1. The trial court did not err by refusing defendants proposed special instruction regarding eyewitness identification.

a. Additional facts.

Appellants requested a special instruction regarding eyewitness identification.^[5]The trial court indicated it had compared the proposed special instruction with CALJIC No. 2.92, the standard jury instruction on eyewitness identification, and was concerned that much of the information contained in the proposed instruction was cumulative to CALJIC No. 2.92. Accordingly, the trial court prepared a revised version of CALJIC No. 2.92, which incorporated most of the additional information requested by defendants. Counsel for Mojarro objected that the trial court had omitted the following language from the proposed special instruction: I remind you that no single factor determines the reliability of eyewitness identification. The presence of one or more factors in a particular case, may offset the [e]ffect of others. (Italics added.) Otherwise, the revised instruction prepared by the trial court was acceptable to Mojarro. Counsel for Machuca did not object to the revised instruction.

The trial court explained that it believed the omitted language was an inaccurate statement of law. It stated, I dont feel that its an accurate representation of law for me to tell the jury that they cant single out one factor to say that witness is or is not reliable. Of course, they should consider everything. But what they ultimately decide [a]s a reason that a person is or is not reliable, is up to them, and I think that this last paragraph [i.e., the portion italicized above], the way its phrased, is in opposition to that. Accordingly, the trial court instructed with the modified version of CALJIC No. 2.92 it had prepared.^[6]

b. Discussion.

Although appellants contend the trial court refused their proposed special instruction, this mischaracterizes the record. Instead, the trial court revised CALJIC No. 2.92 to incorporate the bulk of the additional material requested by appellants. This was not error. Under appropriate circumstances, a trial court is required to give a requested jury instruction that pinpoints the defense theory of the case. (People v. Bolden (2002) 29 Cal.4th 515, 558.) However, a trial court may refuse a pinpoint instruction if it merely duplicates other instructions. (People v. Moon (2005) 37 Cal.4th 1, 30; People v. Gurule (2002) 28 Cal.4th 557, 659; People v. Roldan (2005) 35 Cal.4th 646, 741.) Here, the trial court appropriately combined the proposed instruction with CALJIC No. 2.92 to ensure the instructions were not repetitive. There is no requirement that the jury be instructed in the precise language requested by a party. (People v. Kegler (1987) 197 Cal.App.3d 72, 80; People v. Williams (1980) 101 Cal.App.3d 711, 719.)

The only substantive portions of the proposed instruction omitted by the trial court were the statements that no single factor determines the reliability of an eyewitness identification and the presence of one or more factors in a particular case, may offset the [e]ffect of others. Appellants assert that this language was specifically approved in People v. Fudge (1994) 7 Cal.4th 1075, 1109, footnote 8, and should not have been excluded.

We disagree. People v. Fudge, supra, 7 Cal.4th 1075, does not support appellants argument. In Fudge, the defendant presented the testimony of an eyewitness identification expert. The defendant requested an instruction very similar to that proposed by defendants here, which included the challenged language. The trial court denied Fudges request to give the special instruction. The Fudge trial court did not give CALJIC No. 2.92, which had been approved by People v. Wright (1988) 45 Cal.3d 1126, 1141, or any other instruction listing specific factors for the jurys consideration. On appeal, Fudge held that the trial court should not have refused the proposed instruction outright. Instead, To the extent that the proposed instruction was argumentative, the trial court should have tailored it to meet the requirements of People v. Wright, supra, at pages 1138-1144. (People v. Fudge, supra, at p. 1110.) Fudge concluded the omission was harmless because even absent the identification evidence, there was strong evidence of the defendants guilt; defense counsel expounded on the identification factors at length during closing argument; and the trial court gave other instructions that, although not listing factors for the jurys consideration, directed the jurys attention to the issue of the reliability of the identifications. (Id. at p. 1111.)

Thus, People v. Fudge does not stand for the proposition that the language omitted by the trial court in this case was proper or required. Moreover, unlike in Fudge, the trial court here correctly instructed with CALJIC No. 2.92, an instruction which has been approved by the California Supreme Court. (See People v. Wright, supra, 45 Cal.3d at p. 1141; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.) CALJIC No. 2.92 sufficiently apprised the jury of the relevant legal principles. Wright explained 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. (People v. Wright, supra, at p. 1141.) Wright expressly approved CALJIC No. 2.92, commenting that when modified to fit the evidence, CALJIC No. 2.92 will usually provide sufficient guidance on eyewitness identification factors. (People v. Wright, supra, at p. 1141.) The weight to be given and effect of any particular factor is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. (Id. at p. 1143, fn. omitted.)

Moreover, the language omitted from the proposed instruction added little or nothing to CALJIC No. 2.92. The omitted material suggested only that a variety of factors can influence the accuracy of an identification. The jury could not have missed that point, as CALJIC No. 2.92 listed numerous factors and expressly told jurors to evaluate all relevant evidence, both positive and negative, that might have a bearing on the accuracy of the identification. That one or more factors might offset the effect of others is a matter of common sense and was sufficiently conveyed by the instruction given, which told jurors to evaluate all the evidence. To the extent the proposed instruction purported to inform jurors they could not place primary emphasis on one or more particular factors, the proposed instruction was incorrect. The weight to give evidence is a question for the jury. Appellants point us to no authority holding that jurors are prohibited from relying on any particular factor or combination of factors when determining whether an identification is accurate. A trial court properly refuses an instruction offered by the defendant if it incorrectly states the law. (People v. Gurule, supra, 28 Cal.4th at p. 659; People v. Moon, supra, 37 Cal.4th at p. 30; People v. Roldan, supra, 35 Cal.4th at p. 741.)

In short, here the trial court correctly instructed with CALJIC No. 2.92, while at the same time revising the instruction to include the nonobjectionable portions of the instruction requested by appellants. There was no instructional error.

2. Prosecutors use of a chart.

a. Additional facts.

After the prosecutors closing argument, and before defendants closing arguments commenced, the prosecutor indicated she had prepared a chart for use in her rebuttal. The prosecutor explained the chart was based upon the standard version of CALJIC No. 2.92, and did not list every factor included in the revised version of CALJIC No. 2.92 given by the trial court. Instead, it was a condensed version. Counsel for Mojarro objected. The trial court instructed the prosecutor that if she wished to use the chart, she had to explain to the jury that it only incorporated some of the factors listed in the instruction. During subsequent argument, the prosecutor complied with this directive, stating, Now, Ive prepared a summary of the first part of the instruction on that issue and these instructions are helpful, if you need them. Theyre guidance, if you need them. But theyre really just trying to encapsulate what I think most of you have already in common sense. So there are other factors that can be considered as well. These are the factors that Id like to draw [to] your attention. (Italics added.)

b. Discussion.

Mojarro complains that the use of the incomplete chart was prejudicial error. Mojarro acknowledges that the use of charts during argument is commonplace and nonobjectionable. He also concedes that none of the information contained in the prosecutors chart was incorrect. Nonetheless, he urges that use of the chart was error because it was incomplete, in that it did not include the additional factors that had been added to CALJIC No. 2.92 at defendants request, i.e., capacity of the witness to observe the defendant; whether the identification was the product of the witnesss own recollection; the length of time the witness observed the perpetrator; the distance from which the observation was made; the lighting conditions; and the witnesss prior consistent or inconsistent identifications, or lack thereof.

We are unpersuaded. Mojarros reliance upon cases finding error when charts containing incorrect information were used is inapt. As Mojarro concedes, none of the information in the prosecutors chart was incorrect. Moreover, the prosecutor expressly informed the jury that her chart listed only some of the factors relevant to evaluation of eyewitness identification. Thus, the chart was not misleading but fell within the confines of acceptable argument. Moreover, jurors had the written instructions, which contained the revised version of CALJIC No. 2.92, in the jury room with them. Under these circumstances, any purported error in allowing the prosecutor to use the chart was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.)

3. Imposition of an upper term sentence.

The trial court sentenced Mojarro to the upper term of five years, plus a 10-year section 12022.53(b) enhancement for firearm use. At sentencing, the trial court stated it had read and considered the probation report, and [i]n light of Mr. Mojarros criminal record, it was considering the high term. The court noted that although Mojarro was only 18, he had already had two sustained petitions and a conviction for theft-related and other offenses, and had been on probation for less than four months when he committed the instant crime. The court further observed, this offense is not just a car theft. Its now escalated. []  I do consider in mitigation that he was 18, and that he was trying to get an education, but his criminal history at such a young age, and to have elevated it to such a crime that presents a threat of great bodily injury, which is another factor that I considered, is so negative that I must consider it a highly aggravating factor, and the fact that he is on probation; and I find that the circumstances in aggravation outweigh[] the circumstance in mitigation.

Mojarro contends that imposition of an upper term sentence violated his constitutional due process and jury trial rights, as interpreted in Blakely v. Washington, supra, 542 U.S. 296 and Apprendi v. New Jersey(2000) 530 U.S. 466; see Cunningham v. California, supra, 127 S.Ct. 856 [decided after Mojarros opening brief was filed]). We discern no constitutional violation.

As a preliminary matter, we reject the Peoples contention that Mojarro waived his claim by failing to object on constitutional grounds at sentencing. The issue was recently decided adversely to the People in People v. Black (2007) 41 Cal.4th 799, 810-812 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 837. Mojarro was sentenced on June 30, 2005, after the United States Supreme Courts decision in Blakely and the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but before the decision in Cunningham. Under these circumstances, appellants claim is not forfeited. (People v. Sandoval, supra, at p. 837, fn. 4.) An objection in the trial court is not required if it would have been futile. [Citation.] (Ibid.) At the time of sentencing, Black I was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow . . . Black I and deny the request. (Ibid.) Accordingly, Mojarros claim is not waived.

Mojarros claim fails on the merits, however. In Apprendi v. New Jersey, supra, 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the Court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; Black II, supra, 41 Cal.4th at pp. 805, 808-809; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)

Imposition of an upper term sentence does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, [a]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, at p. 812.) In other words, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.)

Here, the trial court permissibly relied upon the fact that Mojarro had suffered prior sustained petitions and a conviction for theft-related and other offenses. Mojarros probation report which the trial court referenced at sentencing discloses that in 2003 he suffered sustained juvenile petitions for grand theft auto, taking a vehicle without the owners consent, carrying a concealed dirk or dagger, driving without a license, and possession of burglary tools. In 2004, he suffered a sustained juvenile petition for the possession, sale or manufacture of dangerous weapons. As an adult, he was convicted of grand theft auto. Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendants criminal history. (See Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction].) This recidivism exception applies not only to the fact of the prior conviction, but also to other related issues that may be determined by examining the records of the prior convictions, including the question of whether the defendants convictions are numerous or increasingly serious. (Black II, supra, at pp. 819-820.) Here, Mojarros prior convictions were numerous. (See id. at pp. 818-819; Cal. Rules of Court, rule 4.421(b)(2) [specifying as an aggravating circumstance that defendants prior convictions are numerous].) Because Mojarros criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, he was not legally entitled to the middle term and his right to a jury trial was not violated. (Black II, supra, at p. 820.)

4. Ineffective assistance of counsel.

Appellant Machuca argues his trial counsel was ineffective in that he failed to elicit critical evidence, failed to effectively cross examine the victim, waived opening statement and presented only a weak closing argument to the jury, and failed to move to suppress evidence of Nicholass identification of appellants at a field showup. We address his contentions seriatim, and conclude none have merit.

a. Applicable legal principles.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Gray (2005) 37 Cal.4th 168, 206-207.) If the defendant makes an insufficient showing on either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (People v. Carter, supra, at p. 1211; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) A reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. (People v. Carter, supra, at p. 1211; People v. Gray, supra, at p. 207.)

b. Purported failure to elicit critical evidence regarding the color of the light cast by a streetlight.

At the preliminary hearing, Machuca was represented by a different defense attorney than at trial. At that proceeding, Nicholas testified as follows. The area where the robbery occurred was illuminated by streetlights. When asked whether the streetlights were the white streetlights or the yellow-orangeish streetlights? He replied that they were orangey streetlights. Nicholas was able to see that one of the guns was light colored, but could not describe the color further because of the orange tinge of the streetlight.

Machuca complains that at trial, his attorney failed to pursue this line of inquiry and failed to elicit evidence of the color distortion and the different possible colors that could make a car parked directly under a bright orange light appear maroon. Machuca asserts [i]t is common knowledge that low sodium orange streetlights can distort color. Indeed, Machuca asserts without benefit of authority that the fact that color of light affects the perception of the color of objects is a matter of which a court could and must take judicial notice under Evidence Code section 451, subdivision (f) (a fact or proposition of generalized knowledge so universally known that it cannot reasonably be the subject of dispute).

First, we do not consider the effect of the color of a streetlight on surrounding objects to be a matter of common knowledge of which a court could take judicial notice under Evidence Code section 451, and Machuca cites no authority so holding.

Second, there is no evidence in the record before us that counsel failed to adequately investigate the light color issue, or lacked a tactical reason for failing to raise it. (See People v. Jones (2003) 30 Cal.4th 1084, 1115.) The record does not disclose, for example, whether trial counsel investigated the streetlight color or consulted an expert, or what the results of that inquiry were. Machuca has therefore failed to establish counsels performance fell below an objective standard. (People v. Carter, supra, 30 Cal.4th at p. 1211.)

Further, Machuca makes no showing, beyond his own unsupported and conclusory argument, that further evidence of the light color would have actually benefited the defense. The car was distinctive not simply because of its color, but because of the damage to the vehicle. The color of the gun was not a significant issue at trial in that no gun was ever presented as evidence. Moreover, there is no evidence that the streetlight quality made it likely Nicholas misdescribed the color of the robbers vehicle. Certainly, further questioning of Nicholas regarding the lighting would not have proved fruitful: Nicholas was consistent in his insistence that he had ample light to view the robbers faces and getaway car. Nicholas testified that he could see the robbers really clearly in the light provided by the streetlight; in fact, he was afraid the robbers would kill him because he had gotten such a clear view of their faces. He testified that the area was well-illuminated, allowing him to see the color of the getaway car. Counsel could have made a reasonable tactical decision that further questioning of Nicholas regarding the lighting would not assist the defense. As we have noted, the record does not reveal whether defense counsel attempted to retain a lighting expert, or whether such an experts testimony would have been favorable to the defense. Machucas conclusory and speculative argument is insufficient to establish ineffective assistance. (See People v. Medina (1995) 11 Cal.4th 694, 773 [on direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the likely testimony of potentially available witnesses].) On this record, and without a clearer picture of the available testimony or evidence, we have no practical basis for second-guessing counsels tactical appraisal of the risks in presenting it. (Id. at p. 774.)

Machuca also asserts that at trial, Nicholas erroneously described the shirt one of the defendants was wearing in court as maroon, whereas it was actually beige, but defense counsel failed to inquire whether Nicholas was confused about the difference between the colors. This contention is frivolous. In the referenced testimony, Nicholas identified Machuca as one of the robbers, and, when asked to describe appellants in-court attire, stated, Maroon shirt. [] Im sorry. A beige shirt. It is readily apparent this was a mere slip of the tongue, immediately corrected by the witness. Indeed, twice in his earlier trial testimony Nicholas had described the shirt Mojarro was wearing at trial as beige. Had counsel attempted to question Nicholas as suggested by appellant, it is unlikely counsel could have established Nicholas did not know the difference between beige and maroon. Instead, the defense would have appeared argumentative and petty, detracting from the jurys focus on more persuasive arguments.

c. Purported failure to effectively cross-examine the victim.

Machuca next asserts that trial counsel failed to adequately cross-examine Nicholas. As best we can glean from Machucas briefing, Machuca has two primary complaints. First, Machuca contends that Nicholas testified at the preliminary hearing that he could not see Machucas full face at the field show up, but trial counsel failed to elicit this favorable testimony at trial. In fact, Nicholas testified at the preliminary hearing that he viewed the suspects at the field show up at an angle. He could not see directly toward the mens faces, but could see most of their face[s] and bod[ies]. Given Nicholass clear preliminary hearing testimony that he could see most of Machucas face, counsels failure to elicit evidence Nicholas viewed the men at an angle does not undermine confidence in the outcome of the trial.

Second, Machuca urges that at the preliminary hearing, Nicholas testified he was focused on the robbers guns, but trial counsel failed to elicit this favorable evidence. At the preliminary hearing, Nicholas confirmed that his attention was directed mostly toward the guns. However, he also testified that he got a good really look at their face [sic], saw Mojarros face during the entire robbery, and could see both of them really good. Even assuming arguendo that trial counsel should have elicited this portion of Nicholass preliminary hearing testimony at trial, any error was harmless. The preliminary hearing testimony did not suggest Nicholas was so focused on the guns that he was unable to identify the defendants. There is no reasonable probability the outcome would have been different had trial counsel elicited the testimony in question. (See Williams v. Taylor (2000) 529 U.S. 362, 390-391; Strickland v. Washington, supra, 466 U.S. at p. 694; In re Vargas (2000) 83 Cal.App.4th 1125, 1132-1133.)

Third, Machuca asserts that (1) Nicholas testified at trial differently than at the preliminary hearing, but trial counsel failed to exploit the inconsistencies in his testimony; and (2) trial counsel failed to cross-examine Nicholas about his conflicting descriptions of the robbers. Machuca fails to more specifically describe or cite the purported inconsistencies, however. As the People point out, Nicholass descriptions of the robbers were largely consistent. To the extent minor discrepancies exited, Machuca fails to provide adequate argument, authority, or citation to specific portions of the record to persuade us that counsels treatment of them constituted ineffective assistance.

d. Failure to move to suppress field showup identification.

(i) Additional facts and contentions.

Machuca next asserts that his counsel was ineffective for failing to move to exclude Nicholass identification of appellants made at the field showup conducted at Ralphs grocery store. As described above, at approximately 9:30 on the morning of the robbery, Nicholass father, Charlie, visited a nearby Ralphs supermarket and observed a car matching the description Nicholas had given police.^[7] Charlie watched the vehicles occupants and concluded they matched the description of the suspects. He telephoned police.

When officers arrived in a marked police vehicle, the maroon car pulled away from the grocery store, traveled approximately 50 feet, and parked in another parking space. Machuca and Mojarro, who were seated in the front drivers and passenger seats, quickly exited the car. Officer Kelly Palmer, who observed the vehicles movements, believed this was unusual. A Bank of America was next to the Ralphs, and Palmer believed most persons who wished to visit the bank after shopping at Ralphs would normally leave their car parked [and] walk over to the bank . . . . It appeared to him that the men who exited the vehicle were attempting to avoid being seen by officers. Officer Palmer detained all three men for a field showup in which Nicholas identified Machuca and Mojarro. According to Nicholass preliminary hearing testimony, the men were handcuffed during the field showup.

(ii) Discussion.

Machuca argues trial counsels failure to move to suppress the identifications constituted ineffective assistance. While the basis for Machucas contention is not entirely clear, it appears he contends his arrest or detention at Ralphs violated the Fourth Amendment because police were tipped off by Charlie, who had not actually witnessed the robbery. He further complains that the detention was based only on guesses, hunches, and hearsay. (Italics omitted.)

We disagree. Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] (In re Manuel G. (1997) 16 Cal.4th 805, 821.) The constitutional standard for permissible detentions is of lesser degree than that applicable to an arrest. [Citation.] A detention may be undertaken  if there is an articulable suspicion that a person has committed or is about to commit a crime  [citation], while probable cause for an arrest exists only when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citation.] (People v. Hester (2004) 119 Cal.App.4th 376, 386.)

Thus,   [i]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]  [Citations.] (People v. Pitts (2004) 117 Cal.App.4th 881, 885; People v. Daugherty (1996) 50 Cal.App.4th 275, 285.)

There is  no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.] (People v. Celis (2004) 33 Cal.4th 667, 674-675.) The duration, scope, and purpose of the stop are important in making this assessment. (Ibid.)

On the limited record before us, it appears clear that Machuca was simply detained, not arrested, prior to Nicholass positive identification of him as one of the robbers. A field identification procedure was the least intrusive means to determine whether Machuca was one of the culprits. The detention appears to have been brief, and only lasted long enough for Nicholas to travel from his nearby home and arrive on the scene. The fact Machuca was handcuffed did not transform the detention into an arrest. As our Supreme Court has stated, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest. (People v. Celis, supra, 33 Cal.4th at p. 675.)

Police were aware of specific and articulable facts justifying the detention. The robbery occurred just a few hours before, in the same area. Nicholas had given descriptions of the robbers distinctive vehicle, as well as of the robbers themselves. Acting on Charlies tip, police arrived on the scene, whereupon an officer observed the car and the occupants, all matching the descriptions given by Nicholas. The description of the car, in particular, was quite distinctive. When the marked police vehicle arrived on the scene, Mojarro and Machuca appeared to attempt to evade police. Thus, specific and articulable facts existed causing officers to reasonably suspect Machuca and Mojarro were involved in the robbery a few hours before. Although Machuca apparently finds significance in the fact that Charlie, rather than an eyewitness to the crime, spotted the suspects, he cites no authority supporting his view. On the record before us it is apparent any motion to suppress would have been denied. Counsel therefore cannot be faulted for failing to so move. Defense counsel is not required to make futile motions or to indulge in idle acts to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)

e. Waiver of opening statement and purportedly inadequate closing argument.

Machuca next complains that his counsel was ineffective for failing to make an opening statement and for making an inept, disorganized, ungrammatical, and weak closing argument.

The decision whether to forgo opening statement is clearly a matter of trial tactics  which a reviewing court generally may not second-guess.  (People v. Carter (2005) 36 Cal.4th 1114, 1189.) Here, Machucas counsel waived opening argument. Counsel for Mojarro made a two-paragraph opening statement informing the jury that there was a major issue here and that is identification. The decision to forgo further opening statement could have had a reasonable tactical basis. The prosecutions case was based primarily on Nicholass identification of the defendants. Defense counsel could reasonably have chosen to hear the prosecutions case before deciding whether to present a defense. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [reasonably competent counsel could have determined that the strongest defense argument was that the prosecution had failed to prove its case beyond a reasonable doubt]; cf. People v. Carter, supra, 36 Cal.4th at p. 1189.)The record before us does not establish the absence of a valid tactical choice, nor is there any showing that the outcome would have been more favorable for Machuca had counsel made an opening statement. Thus, the claim of ineffective assistance based on the lack of an opening statement must fail. (People v. Mitcham, supra, at p. 1059.)

Machucas contention that closing argument was inadequate is equally unpersuasive. Machucas counsel reminded the jury that Nicholas was the only witness to the robbery; that Nicholas had been sleeping prior to the robbery, and had not had sufficient time to fully wake up, making him less observant; that Charlie saw Machuca and Mojarro in the grocery store, and that they looked indistinguishable from other Latinos; that while their attire (sweatshirts and jeans) matched the description given by Nicholas, this attire was not distinctive and was commonly worn by young men; and that the guns were never found. Counsel suggested Nicholass identification was mistaken, and reminded the jury of the Peoples heavy burden under the reasonable doubt standard. This argument was not unreasonable, given the limited issue presented by the case, i.e., whether Nicholas had identified the right men. Contrary to Machucas suggestion, defense counsel made a wise tactical choice by conceding that Nicholas had been robbed by someone. Counsel does not render ineffective assistance by conceding various facts or even various degrees of guilt. (See People v. Freeman (1994) 8 Cal.4th 450, 498 [Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt.]; People v. Mitcham, supra, 1 Cal.4th at pp. 1060-1061 [good trial tactics often demand complete candor with the jury, and . . . in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her clients innocence].) There was no dispute that Nicholas had been robbed, and for defense counsel to have argued otherwise would have been counterproductive. Contrary to Machucas argument, his attorney did not concede that Nicholas identified the car correctly.

Machucas complaint that counsel ignored the most compelling eyewitness identification factors fares no better. Contrary to Machucas suggestion, the identification does not appear to have been cross-racial. The prosecutor argued that a cross-racial identification was not implicated as both the victim and the assailants were Latino. The record before us does not contain evidence to the contrary. Counsel could have had a legitimate tactical reason for failing to ask Nicholas whether he was stressed when he viewed the suspects at the field showup at Ralphs: it was entirely probable Nicholas was not stressed at the time given that the suspects were in custody and several hours had passed since the incident. As we have already explained, Nicholass testimony was that he did see most of the defendants faces at the field showup at Ralphs; thus argument on this point was unlikely to be persuasive. Machucas counsel failed to argue that (1) when arrested, neither suspect was wearing a diamond earring Nicholas had described to police, and (2) Nicholass identification was inaccurate because he was stressed at the time of the robbery. Mojarros counsel, however, argued both these points, as well as the discrepancy between the defendants actual heights and the descriptions given by Nicholas. This argument clearly inured to Machucas benefit as well as Mojarros, and therefore Machucas counsels failure to include these items in his argument could not have negatively affected the outcome or undermined confidence in the trial.

f. Failure to call an eyewitness identification expert.

In a one-sentence argument contained under the heading Trial counsel failed to present any opening statement or to present an effective closing argument, Machuca argues defense counsel was ineffective for failing to present the testimony of an eyewitness identification expert. Assuming arguendo that Machucas cursory treatment of the issue is sufficient to raise it on appeal, the claim nonetheless lacks merit. The record before us sheds no light on whether defense counsel attempted to retain an eyewitness identification expert, or whether such an experts testimony would have been favorable to the defense. Machucas conclusory and speculative argument is insufficient to establish ineffective assistance. (See People v. Medina, supra, 11 Cal.4th at p. 773.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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^[1] Appellant Machucas name is spelled in his briefing as Manchuca. We adopt the spelling used in the record, Machuca.

^[2]Blakely v. Washington(2004) 542 U.S. 296; Cunningham v. California(2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856].

^[3] In the interest of clarity, we hereinafter sometimes refer to Nicholas Paredes and his father, Charlie Paredes, by their first names.

^[4] All further undesignated statutory references are to the Penal Code.

^[5] The proposed special instruction stated: Many factors can affect the accuracy of eyewitness identification. In determining the weight to be given the eyewitness identification testimony in this case, you should first consider the factors I previously mentioned that may affect the testimony of all witnesses generally. But you should consider other factors that may particularly affect eyewitness identification testimony[.] Some are known to you by personal experience, while others have [been] the subject of specific study and proof. Among the more important factors to consider are the following: [] No. 1) The witnesses capacity and opportunity to observe the offender. [] This includes, among other[] things, the length of time available for observation, the distance from which the witness observed the lighting and whether the person who committed the crime was a prior acquaintance of the witness. [] No. 2) The degree of certainty expressed by the witness regarding the identification and the circumstances . . . under which it was made, including whether it was [the] product of the witnesses own recollection. [] No. 3) The occasions, if any, upon which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial. [] And No. 4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identification. [] I remind you that no single factor determines the reliability of an eyewitness identification. The presence of one or more factors in a particular case may offset the [e]ffect of others. In weighing the identification testimony of an eyewitness, you should, therefore, evaluate all relevant evidence both positive and negative that may bear on the accuracy of that testimony.

^[6] The modified version of CALJIC No. 2.92 used by the trial court provided: Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime 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 and capacity 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 or field showup; [] The period of time between the alleged criminal act and the witness identification; [] Whether the witness had prior contacts with the alleged perpetrator; including whether the alleged perpetrator was a prior acquaintance of the witness; [] The extent to which the witness is either certain or uncertain of the identification; including the degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made; [] Whether the witness identification is in fact the product of his/her own recollection[;] [] The length of time available for observation; [] The distance from which the witness observed the alleged perpetrator of the act; [] The lighting conditions at the time of the witness observations; [] The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; [] The occasions, if any, on which the witness made an identification of the defendant that was consistent with the identification at trial, and the circumstances surrounding such identification; [] and any other evidence relating to the witness ability to make an identification. [] In weighing the identification testimony you should evaluate all of the evidence, both positive and negative, that may bear on the accuracy of that testimony.

^[7] Charlie was present when Nicholas spoke with police and described the suspects and vehicle.