P. v. Nusser



















Filed 6/5/13 P. v. Nusser CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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


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THE PEOPLE, Plaintiff and Respondent, v. ALAN NUSSER, Defendant and Appellant.

H037479 (Santa Clara County Super. Ct. No. C1092417)

A jury
convicted defendant Alan Nusser of second
degree robbery. The trial court suspended
imposition of sentence and placed defendant on probation with a condition that
he serve 10 months in jail. On appeal,
defendant contends that (1) the trial court erred by excluding evidence of
third-party culpability, and (2) he received ineffective assistance of
counsel. We disagree and affirm the
judgment.

background

On New
Year’s Eve 2009, Soon Ta Lee parked her car in a Bank of America parking lot
near where defendant was sitting inside a parked car. When Lee exited her car, she saw defendant
exit his car. Lee walked around to the
passenger side of her car, retrieved a bag from the front seat, and began
walking toward the bank. She then
noticed “somebody was coming from [her] back.”
She tried to look back, but “was hit on [her] shoulder so that he
[could] grab [her] bag.” Defendant then
hit her bag with his hand and grabbed it.
Lee leaned forward to counteract the pulling, but defendant ultimately
twisted her arm, pulled the bag from her, and ran back to his car. He entered the rear driver side passenger
door, and the driver drove off. A
witness noted the license plate number and called 911. Police responded to the bank, and Lee
described defendant to them as a clean-cut “half white” male about 25 years old
wearing suspenders and a white hat.

Police
officers traced defendant’s vehicle to a nearby residence and surrounded the
house. At some point, defendant’s mother
exited the house carrying an infant. She
told the officers that her two sons and Jose Arreola were in the house. She gave the officers her sons’ cell phone
numbers. The officers called the numbers
and announced that the police were investigating a crime and requiring the
people inside the residence to come outside.
They also used a patrol car public address system to announce the
same. When convinced that the occupants
were not exiting, they fired batons into three different windows. Defendant exited. His brother and Arreola followed. When defendant passed his mother on the way
to a patrol car, he remarked, “Sorry, mom.”


The police
compiled a photo line-up of six photographs that included defendant’s
photograph, and Lee identified defendant as the man who grabbed her bag to
“[a]lmost 80 percent” certainty. When
the police showed Lee another photo line-up that included defendant’s brother,
Lee did not identify anyone.

Lee identified defendant at the href="http://www.fearnotlaw.com/">preliminary hearing as the man who
grabbed her bag to the same 80 percent degree of certainty. Shortly before Lee testified at trial, a
police detective showed Lee a photo line-up that included Arreola’s photograph
and Lee identified Arreola as the man who grabbed her bag. At trial, Lee identified defendant as the man
who grabbed her bag and explained that she thought that Arreola’s photograph
looked similar to defendant’s photograph and the two photographs were of the
same person.

In his defense, defendant relied
upon Arreola’s appearance, about which a police officer opined was at least
half-Hispanic.href="#_ftn1" name="_ftnref1"
title="">[1] He argued that Lee had misidentified
defendant. He began as follows: “What do you do with the testimony given to
you by Soon Ta Lee? No question about
it, she was robbed. [The prosecutor] is
right in that respect. Whatever it was,
whoever did it, robbed Ms. Lee. No
question. [¶] You don’t have to go through the elements. You don’t have to worry about was it a
taking, was there force, was it against the will, was it criminal. I agree what happened out there on December 31st, 2009 . . . was a
robbery. Okay. That’s not an issue that you have to
consider. It was not a grand theft
person. It was a robbery. Up or down, that’s what it was. The question is, who did it.” He then urged that Lee’s 80 percent certainty
did not constitute certainty beyond a reasonable doubt. And he pointed out that Lee had once
identified Arreola as the perpetrator.
He continued: “The only thing
that has been proved in this case is that Ms. Lee was robbed. That was proved beyond a reasonable
doubt. Who did it has not been. I submit to you, ladies and gentlemen, that
the question as to who robbed Ms. Lee, whether that has been proved beyond a
reasonable doubt, the only reasonable conclusion that you can come to is a
resounding no, that has not been proved beyond a reasonable doubt.” He then cast doubt upon the reliability of
Lee’s identification by noting evidentiary inconsistencies and Arreola’s closer
resemblance to a Hispanic male than defendant’s resemblance to a Hispanic male.

third-party culpability evidence

During
trial, defendant learned that Arreola had been arrested for a robbery committed
near the same Bank of America branch on Valentine’s Day 2010. The trial court granted defendant a
continuance to review the police report and consider whether to make a motion
to admit any evidence arising from Arreola’s arrest.

Defendant later made a motion “to
introduce the fact of ARREOLA’s arrest and being a charged defendant in that
still pending criminal case” “of a robbery, kidnapping, and assault with a
deadly weapon . . . behind the very same Bank of America branch . . . .” He argued that he had a federal
constitutional right to proffer evidence that other persons may have committed
the crime.

The People countered that the
proffered evidence did not constitute third-party culpability evidence because
the charge against Arreola did not link him to the robbery of Lee. They also posed that defendant was
essentially seeking admission of character evidence prohibited by Evidence Code
section 1101, subdivision (a)href="#_ftn2"
name="_ftnref2" title="">[2]
(character evidence in the form of specific instances of a person’s conduct is
inadmissible when offered to prove the person’s conduct on a specific
occasion), and not excepted from that prohibition on the issue of identity by
section 1101, subdivision (b) (character evidence that a person committed an
act is admissible when offered to prove a fact other than disposition to commit
the act such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or sex-case defendant’s unreasonable belief
that victim consented).href="#_ftn3"
name="_ftnref3" title="">[3] They finally urged that, if admissible, the
evidence should be excluded under section 352 (exclusion of evidence if
probative value is substantially outweighed by probability that admission will
necessitate undue consumption of time or create substantial danger of undue
prejudice, confusion of issues, or misleading the jury) because there was no
probative value in the mere fact of an arrest, proving the underlying facts
would necessitate a trial within a trial and consume an undue amount of time,
and the evidence was prejudicial to the extent it would allow the jury to
assume that Arreola robbed Lee because he was later arrested for robbery in the
same area.

The trial court denied defendant’s
motion. It explained its ruling at
sentencing: “Let me turn to the next
issue, and that was the defendant’s motion and request to introduce evidence of
the arrest and prosecution of Jose Arriola [sic]
for robbery and other offenses. . . . [¶] I did read the briefs. And, again, just to clarify, I believe I
clarified this at the oral argument on the motion, but on page 2 of the
defendant’s brief the defense said that during periods of in limine the defense
requested that Mr. Arriola [sic] be
allowed to be exhibited to Ms. Lee as she testified. The court took that matter under submission
for later decision. But actually the
court did not take that matter under submission. It was understood that Mr. Arriola [>sic] could be produced at trial. And after the People conducted a photo
lineup, the defense withdrew their request to have Mr. Arriola [>sic] to be produced at trial. [¶] I did
review the briefs and the materials cited, and as I informed counsel at the
appropriate time, I did deny the defendant’s request to introduce that evidence
concerning Mr. Arriola’s [sic] arrest
and prosecution. I made clear that the
defense could argue that Mr. Arriola [sic]
was, in fact, the perpetrator of this crime under the standards set forth in
the cases . . . and that was based on the existing evidence admitted at trial
and the victim’s identification concerning Mr. Arriola’s [sic] photograph. [¶] However, the issue in this motion was the
admissibility of the additional evidence concerning Mr. Arriola [>sic] to support the claim that Mr.
Arriola [sic] committed this
robbery. The defense did not attempt to
justify the introduction of that evidence under Evidence Code section
1101. The evidence was still excluded
under--covered by section 1101[, subdivision] (a), and the defense did not even
attempt to justify the admission of the evidence under section 1101[,
subdivision] (b) under any of the exceptions there to prove any of those
relevant issues. [¶] . . . [¶] In addition to the fact that the defense did not
support the admissibility of the conduct under section 1101, I would have also,
as an alternative basis, would have excluded the evidence under section
352. Again, I would have found, and I
did find that the evidence sought to be admitted any probative value was substantially
outweighed by the probability that the admission would necessitate the undue
consumption of time and would create a substantial issue of prejudice or
confusing the issues or misleading the jury. [¶] As I explained to counsel, the
defense could certainly argue, again, that Mr. Arriola [sic] was a perpetrator of this crime . . . based on the existing
evidence, but I did exclude the other evidence and prosecution of Mr. Arriola [>sic].”


Defendant contends that the trial
court erred in finding that evidence of the Valentine’s Day robbery was
inadmissible under section 352. There is
no merit to this point.

As is apparent from our lengthy
recount of the Valentine’s Day robbery background, (1) defendant sought
admission of that evidence as third-party culpability evidence under federal
constitutional principles, (2) defendant did not seek admission of the evidence
as character evidence on identity that caused the People to formally invoke
section 352 as a bar to admission, and (3) the trial court made no ruling
grounded on section 352. As to this
latter point, it is crystal clear that the trial court did no more than opine
that it would have excluded the evidence under section 352 had defendant sought
admission under section 1101, subdivision (b).
Defendant concedes as much in his recount of the trial court’s remarks
(“the trial court indicated that it would nonetheless have excluded the
evidence under Evidence Code section 352”).
Because the trial court made no ruling under section 352, we have name=SearchTerm>no occasion to determine whether the trial court erred
in making a ruling under section 352. (>Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)

ineffective assistance of counsel

“Under both
the Sixth Amendment to the United States Constitution and article I, section
15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v.
Ledesma (1987) 43 Cal.3d 171, 215.)
That right “entitles the defendant not to some bare assistance but
rather to effective assistance.”
(Ibid.) But the “Sixth
Amendment guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” (Yarborough
v. Gentry (2003) 540 U.S. 1, 8.)

“To establish constitutionally
inadequate representation, a defendant must demonstrate that (1) counsel’s
representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant. (People
v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington
(1984) 466 U.S. 668, 687-696.) ‘When a
defendant on appeal makes a claim that his counsel was ineffective, the appellate
court must consider whether the record contains any explanation for the
challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel
acted or failed to act in the manner challenged, ‘unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ [citation], the contention must be rejected.” ’
” (People v. Samayoa (1997) 15
Cal.4th 795, 845.)

name="SDU_3">Defendant
bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th
415, 436.) Our review is highly
deferential; we must make every effort to avoid the distorting effects of
hindsight and to evaluate the challenged conduct from counsel’s perspective at
the time. (In re Jones (1996) 13
Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial counsel’s
representation was deficient “we accord great deference to the tactical
decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics
and chilling vigorous advocacy by tempting counsel “to defend himself [or
herself] against a claim of ineffective assistance after trial rather than to
defend his [or her] client against criminal charges at trial.” ’ ” (In re Fields (1990) 51 Cal.3d 1063,
1069.) A court must indulge a strong
presumption that counsel’s acts were within the wide range of reasonable
professional assistance. (Strickland
v. Washington, supra,
at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a
matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246
Cal.App.2d 343, 356.) As to failure to
object in particular, “[a]n attorney may choose not to object for many reasons,
and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495,
540.) This is the case especially when
trial counsel might reasonably have concluded that an objection would be
futile. (People v. Price (1991) 1
Cal.4th 324, 387.)

Defendant complains about three
asserted derelictions.

The first
instance is defense counsel’s failure to move in limine to exclude the
consciousness-of-guilt evidence (defendant’s delay in exiting the residence in
response to the police and the “Sorry, mom” statement). According to defendant, defense counsel
should have sought to exclude the evidence under the authority of section 352
because the evidence of delayed exit was minimally probative given that he had
no duty to exit his home in the absence of a warrant and the evidence of his
apology to his mother was minimally probative because he could have been
apologizing for the police who had shot out the windows. Defendant continues that proving the manner
of his arrest consumed an undue amount of time and was prejudicial because it
allowed an “implied showing of consciousness of guilt.” Defendant’s analysis is erroneous.

We
emphasize that this issue does not concern the admissibility of evidence. The consciousness-of-guilt evidence was
admitted without objection--the trial court did not exercise discretion and
make a ruling. We therefore decline to
follow defendant’s lead and review an evidentiary ruling that the trial court
did not make. Defendant’s point instead
concerns whether trial counsel had reason to refrain from objecting and, if
not, whether the failure to object subjected defendant to prejudice. Thus, defendant must necessarily demonstrate
at the threshold that the trial court would have sustained his objection
(granted his in limine motion)--as a matter of law--had trial counsel made
one. This follows because failure to
make such a showing is a concession that (1) the trial court could have ruled
either way on the objection, and (2) trial counsel could have therefore
reasonably concluded that an objection would be futile.

As is apparent, defendant’s
argument is no more than a reargument about a discretionary matter rather than
a demonstration that the trial court would have been compelled to grant the
supposed in limine motion as a matter of law.
Moreover, his assertion that the consciousness-of-guilt evidence was
prejudicial because it allowed the jury to infer consciousness of guilt not
only concedes the evidence’s significant probative value and the concomitant
futility of objecting to its admission but also demonstrates his failure to
grasp section 352 principles. In
applying section 352, “prejudicial”
is not synonymous with “damaging.” It
refers to evidence that uniquely tends to evoke an emotional bias against the
defendant as an individual with very little effect on the issues. (People v. Doolin (2009) 45 Cal.4th
390, 439.)

The second
instance is defense counsel’s failure to seek admission of the Valentine’s Day
robbery under section 1101, subdivision (b).

Again, in this context, defendant’s
burden is necessarily to show that, had trial counsel sought admission on
section 1101 grounds, the trial court would have been compelled to admit the
evidence. And, again, there is no
question that defendant fails to make the necessary showing given that (1) one
could rationally view the Valentine’s Day robbery as inadmissible under section
1101 because it was dissimilar to the New Year’s Eve robbery (>ante, fn. 3), and (2) the trial court
actually supposed that the evidence was admissible on section 1101 grounds but
expressed that it would, in that event, exclude the evidence under the
authority of section 352 because of its limited relevance and obvious potential
for delay and confusion.

The third
instance is defense counsel’s concession that Lee was robbed (force was used)
despite that (1) defendant was also charged with the lesser included offense of
grand theft, (2) the magistrate did not hold defendant to answer for robbery,
and (3) “the evidence at trial did not reliably show force.”

While “a
defense attorney’s concession of his client’s guilt . . . can constitute
ineffectiveness of counsel,” there may be times when it would be a reasonable
trial tactic to “ ‘adopt[] a more realistic approach’ ” and concede some
facts. (People v. Gurule (2002) 28 Cal.4th 557, 611, 612.) There is a strong presumption that counsel’s
actions were based on sound trial strategy, even when counsel concedes some
degree of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498.)

In this case, there is a plausible
tactical explanation for trial counsel’s decision to concede that there was a
robbery. The evidence of force was
strong, if not overwhelming. Defendant
hit Lee in the shoulder. He hit Lee’s
bag. He twisted Lee’s arm. This was no simple purse snatching. On the other hand, Lee’s identification of
defendant was arguably equivocal and problematic. Under the circumstances, defense counsel
could have taken a realistic approach to focus on the mistaken-identity
defense--where he could question Lee’s recollection--instead of the
lack-of-force defense--where he would of necessity have to accuse Lee of lying
about being hit and twisted. He could
have reasonably concluded that challenging the force evidence would have
presented a risk of alienating the jury, potentially resulting in a rejection
of the mistaken-identity defense. (See >People v. Hart, supra, 20 Cal.4th at p. 631.)

The California Supreme Court has
rejected ineffective assistance of counsel claims in similar cases, holding
that partial concessions of culpability may be a legitimate tactical choice by
defense counsel where the incriminating evidence is strong. (See People
v. Hart, supra, 20 Cal.4th at p.
631; People v. Bolin (1998) 18
Cal.4th 297, 334-335; People v. McPeters
(1992) 2 Cal.4th 1148, 1186-1187; People
v. Wade (1988) 44 Cal.3d 975, 988; People
v. Ratliff (1986) 41 Cal.3d 675, 697; People
v. Jackson (1980) 28 Cal.3d 264, 292-293.)
Under these authorities, we conclude that defense counsel was not
ineffective for conceding the element of force as to the robbery count.

Defendant’s claims of ineffective
assistance of counsel therefore fail.

disposition

The
judgment is affirmed.











Premo,
J.











WE CONCUR:













Rushing, P.J.

















Elia, J.