P. v. Turner
Filed 5/2/13 P.
v. Turner CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW
THOMAS TURNER,
Defendant and Appellant.
B234831
(Los Angeles County
Super. Ct. No.
BA360333)
APPEAL
from a judgment of the Superior Court of
County,
Bob S. Bowers, Judge.
Affirmed.
Christopher
A. Darden for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and
Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Matthew
Thomas Turner appeals the judgment entered following his conviction
by jury of murder and attempted
murder in which he personally discharged a firearm causing death or great
bodily injury and acted for the benefit of a
subd. (d), 186.22, subd. (b)(1)(C).)
The jury also convicted Turner of possession of a firearm by a
minor for the benefit of a criminal street gang. (Former Pen. Code, § 12101, subd. (a)(1);
§ 186.22, subd. (b)(1)(A).)
name="_ftnref1" title="">[1]
Turner’s
first trial ended in a mistrial after the jury was unable to reach a
verdict. Upon retrial, Turner was found
guilty as charged. Turner retained new
counsel and filed a motion for new trial. After conducting an extended evidentiary
hearing, the trial court denied the motion.
On appeal, Turner contends the trial court abused its discretion in
admitting evidence of statements the surviving victim made to his friend at the
hospital, the trial court erroneously denied the motion for new trial and
assistance in numerous respects. We
reject these contentions and affirm the judgment.
FACTS
AND PROCEDURAL BACKGROUND
1.
The
People’s case in chief.
a.
The shooting.
Shortly
after noon on October 2, 2008,
Joey Chavez and his girlfriend, Stephanie Renteria, both 17 years old,
were walking on Avenue 58 in Highland
Park with
16-year-old Adrian Betancor. Juan
Velasquez, age 17 years, his girlfriend and their infant daughter were walking
a short distance behind them with Renteria’s sister and two nieces. Velasquez saw a suspicious brown vehicle,
telephoned Chavez and warned him of its approach.
Chavez
testified a white car reversed to where he was walking with Betancor and
Renteria. Turner, the passenger in the
white car, asked Chavez and Betancor where they were from. Chavez replied, “South Central Ghetto Boys,â€
a gang that was not active in the area.
Betancor said, “OCK.†Turner
responded, “Fuck OCK,†then said “Avenues,†and “started shooting†with a
revolver. Renteria stood frozen in
shock. Betancor and Chavez ran through a
parking lot. Over the phone, Velasquez
heard Chavez scream, “I got shot.â€
Betancor
died of gunshot wounds suffered in the attack.
Chavez
was shot in the arm, stomach, torso and shoulder. The bullet that struck him in the shoulder
went through his cheek. Chavez was
hospitalized for several weeks, underwent three operations and lost his right
eye.
b.
Chavez’s identification.
A
detective found Chavez bleeding from the right side and holding his eye. When asked who shot him, Chavez made the
letter A, indicating an Avenues gang member.
Chavez was shown photographs of suspects at the hospital but did not
identify anyone.
On
August
5, 2009, Chavez was unable to
identify Turner in a live lineup.
Los
Angeles Police Officer Jose Carrillo transported Chavez to the live
lineup. Carrillo noticed Chavez
“continued to track†Turner, who was Number 3 in the lineup. After Chavez completed a statement card, the
detectives conducting the lineup indicated Chavez had failed to identify
anyone. As Chavez and Carrillo walked to
Carrillo’s car, Carrillo asked if Chavez had recognized anyone. Chavez said he thought he recognized Number 3
“from that day.†When Carrillo asked why
Chavez did not write that statement on the form, Chavez said because Number 3
did not have a goatee. Carillo then
asked why Chavez did not write that statement and Chavez said he did not
understand the instructions. Chavez did
not mention a mole.
At
trial, Chavez testified he feared retaliation if he testified in this case and
stated, “[A] lot of people might not like what I’m doing right now.†Nonetheless, at the start of his testimony,
Chavez identified Turner as the individual who shot him.
On
cross-examination, Chavez indicated he was on a morphine drip in the
hospital. He does not recall speaking
with Velasquez at the hospital or telling the police the shooter had a goatee. The head injury and surgery have affected his
memory considerably.
c.
Renteria’s identification testimony.
A
police report dated October 6, 2008, indicated Renteria stated “the passenger
looked like ‘Fatal’ but she wasn’t sure.â€
At trial, Renteria did not recall making this statement.
On
October 31, 2008, Renteria described the shooter in a video tape recorded
interview conducted by Los Angeles Police Detective Harold DiCroce as a
dark-skinned Latino with a bald or shaved head.
DiCroce asked Renteria if the shooter had any distinctive marks, such as
a mole, a scar or a tattoo. Renteria did
not mention the shooter had a mole on his face.
On
November 19, 2008, Renteria worked with a police sketch artist to create a
composite drawing of the shooter and was asked about distinguishing marks but
failed to mention a mole. The artist
testified she repeatedly asked Renteria if anything should be added to the
image. Based on the absence of a mole in
the final composite, the artist was confident Renteria did not mention a
mole.
On
June 29, 2009, Renteria selected Turner as the shooter from a photographic
lineup shown to her by Detective DiCroce in a video tape recorded
interview.
Detective
Di Croce testified that, when Renteria viewed the photographic lineup, she
initially said Turner looked “similar†to the shooter. In the subsequent interview, Renteria told
DiCroce Turner looked “exactly†like the shooter and “so she wrote it.†Renteria circled Turner’s picture and
wrote: “He has the same hair, dark like
him and the mole stands out. Just
by looking at him he has all the similar facial descriptions as the guy that I
have seen. [Number] 4 looks exactly like
him. Their facial descriptions
are the same.â€
When DiCroce left the room with the
signed photographic lineup, Renteria photographed the original photographic
lineup, which had been left on the table in the interview room, with her cell
phone and placed the phone in her purse.
DiCroce immediately returned to the interview room and seized Renteria’s
phone. Another detective verified the
photograph had not been sent from the phone.
Renteria
also identified Turner in position Number 3 at a live lineup on
September 8, 2009. She testified
she identified him because “he has the exact same mole and looks like the one
that was at the scene.†At trial,
Renteria identified Turner as the passenger in the white car who shot Betancor
and Chavez.
On cross-examination, defense counsel
questioned Renteria about her identification of “Fatal†at the scene, and her
failure to mention a mole when she was interviewed on October 31, even though
the detective specifically asked if anything about the shooter’s appearance
stood out, such as a tattoo or a mole.
Renteria testified her sister asked her to photograph the photographic
lineup with her cell phone and she did so even though she knew she was not to
discuss her identification with anyone.
Renteria admitted that, when she attended the live lineup, she knew the
suspect had a mole and she “went into the live lineup [with] a picture in [her]
head.â€
d.
Velasquez’s testimony re Chavez’s
identification.
Velasquez testified he was interviewed
at the police station on the day of the shooting. He told the police Chavez would not identify
a suspect for fear of retaliation. Later
that day, Velasquez visited Chavez at the hospital. Chavez cried and turned away when Velasquez
told Chavez that Betancor had died. The
next day, Velasquez asked Chavez to identify the shooter and they argued about
it for some time before Chavez indicated the shooter was “that guy we used to
hang out with†in middle school, “the guy they call Snoopy or Snoop Dog.†Chavez also said the individual who shot him
had a mole on his face.
Outside the
presence of the jury, Velasquez testified about an incident that occurred prior
to the preliminary hearing in which Turner’s father confronted Velasquez at a
bus stop where Velasquez was seated with his girlfriend and daughter. Velasquez indicated he and Turner had been
friends in middle school. Wayne Turner,
Turner’s father, exited a bus, confronted Velasquez and said, “You are the guy
that said my son kill[ed Betancor]. . . .
I know who you are.†Wayne Turner
also stated Renteria and Chavez were liars and God would “make sure that we pay
with our lives or something like that.†Wayne Turner also sent messages to Velasquez
via MySpace advising Velasquez to tell the truth. Velasquez indicated he was uncomfortable in
court because Wayne Turner “sits there and stares at me.†The trial court excluded Wayne Turner from
the courtroom during Velasquez’s testimony.
Later in the proceedings, the trial court cautioned Wayne Turner about
staring at people in the hallway.
e.
Alfredo Vilchis and Ernest
Olguin.
Alfredo
Vilchis testified he saw the driver and passenger of a slow moving white car as
he exited a tattoo shop on Avenue 58.
Vilchis entered his SUV, which was parked in front of the shop, and
waited for Ernest Olguin who was closing the shop. Olguin entered the SUV and Vilchis started to
drive from the scene. As he did, Vilchis
heard gunshots and saw the passenger in the white car shooting a gun. Vilchis identified someone other than Turner
in a photographic lineup as resembling the shooter.
At
a side bar conference during Vilchis’s testimony, the prosecutor indicated
Vilchis’s whereabouts had been discovered about six weeks before trial. He was shown a photographic lineup in a
videotape recorded interview but failed to identify Turner. However, after Vilchis saw Turner in court,
Vilchis told the prosecutor he is “almost positive he recognizes this
defendant.â€
Thereafter,
when asked if he recognized anyone in court, Vilchis responded, “I kind of
do, but the haircut just looks different.â€
Vilchis indicated Turner, the passenger in the white car, had short hair
on the day of the shooting. When asked
how he recognized Turner, Vilchis testified that, when he entered the
courtroom, “his face came back.â€
Vilchis was
ordered to return the next morning.
However, he failed to do so. When
Vilchis reappeared, he told the trial court he did not return because, after he
testified, four male Hispanics in their late teens with shaved heads had been
seen in a car in front of the address on Vilchis’s driver’s license.
In the presence of the jury, Vilchis testified he returned
to court after his first day of testimony but left when “two individuals in the
hallway were mumbling shit to me.â€
name="_ftnref3" title="">[3]
Ernest Olguin testified he got a better
look at the passenger in the white car but turned away when the occupants of
the white car looked in his direction.
Shortly after the white car started to move in reverse, Olguin heard
gunshots.
f.
Turner’s gang membership and moniker.
On two occasions before the shooting,
December 5, 2007 and October 13, 2008, and on two occasions after the shooting,
November 19 and 20, 2008, Turner told police officers he was an Avenues
gang member and his moniker was Snoopy.
On November 19, 2008, Turner’s head was shaved and he was in baggy
pants and a white T-shirt. On
November 20, 2008, Turner said he had been a member of Avenues for two
years.
2.
Defense
evidence.
At
1:01 p.m. on October 2, 2008, Turner reported to his probation officer on
Eastlake Boulevard.
James Shaw, a professor of
certified gang expert, testified an individual might identify with a gang
without participating in its activities.
Shaw opined no evidence indicated Turner was an active gang member.
Robert
Shomer, an eyewitness identification expert, testified eyewitness identifications
by strangers are about as accurate as a coin flip and life threatening stress
reduces the likelihood of an accurate identification. The most accurate identifications are made in
initial descriptions, where details are very important. Regarding the live lineup, Shomer testified,
“If you go into a test and one of the alternatives looks familiar because you
have seen him in a prior test . . . . you certainly do not have a valid
reliable test of the ability of the witness to pick out somebody in a fair
test.â€
Turner’s
neighbor testified he had never seen Turner with a goatee.
3. People’s rebuttal evidence.
A detective
drove at lunchtime from the area of the shooting to the office of Turner’s
probation officer on Eastlake Boulevard in approximately 10 minutes.
4.
Defense argument.
Defense counsel argued there was no
shooter and never mentioned Turner’s mole, even though she was asked by DiCroce
and the sketch artist about such features.
However, when shown a photographic lineup nine months after the
shooting, she recognized Turner because of the mole. She changed her written statement on the
photographic lineup statement card from similar to exactly after she spoke to
Detective DiCroce and she took a picture of the photographic lineup with her
cell phone to show her sister or someone else.
Counsel argued Renteria identified Turner at the lineup because she had
seen his picture in the photographic lineup.
Also, Chavez consistently spoke of the shooter as having a goatee. However, Turner has never had a goatee. Counsel asserted Vilchis was not credible
because he disappeared for two years after the shooting and failed to identify
Turner in a photographic lineup. Also,
Vilchis identified Turner in court, which is a suggestive setting, and the
identification was made after a break during which Vilchis spoke to a
detective. Further, when it was time for
cross-examination, Vilchis disappeared.
5.
Motion for new trial.
After he was convicted, Turner retained
new counsel who filed a motion for new trial alleging ineffective assistance of
trial counsel and the prosecution’s failure to disclose
Maryland (1963) 373 U.S. 83 [10
L.Ed.2d 215].) The trial court conducted
a hearing on the motion at which numerous witnesses testified. One of the issues investigated at the hearing
was the allegation defense counsel failed to recall Olguin to the stand after
learning he told Detective Lisa Governo, upon seeing Turner enter the
courtroom, “that’s the wrong guy.â€
The record indicates
Olguin evaded service of process in this case.
A warrant for his arrest issued on
March 30, 2010. He was arrested on the
warrant on June 22, 2010, but was released on an electronic monitor after
it appeared he was in danger in custody.
August 3, 2010, the trial court ordered the electronic monitor removed.
Regarding Olguin’s
statement to Detective Governo, Wayne Turner
testified he heard Olguin say to Governo when Turner entered the courtroom, “I
have never seen that guy or that’s the wrong guy.†Wayne Turner immediately told defense counsel
what he had heard. However, the trial
court struck Wayne Turner’s testimony after he refused to answer questions on
cross-examination on Fifth Amendment grounds.
Mina Lopez, Turner’s mother, testified
she heard Olguin tell Detective Governo, “I have never seen him before.â€
Detective Governo testified that, to
her best recollection, Olguin asked, “Is that him?†when Turner entered the
courtroom. Olguin never said “that’s not
the person†or “you have got the wrong guy.â€
Olguin might have said, “I have never seen him before.†However, had Olguin made that statement,
Governo would have disclosed it to the prosecutor. Governo did not respond to Olguin’s
statement.
Olguin testified he did not tell
Governo, “that is not the guy,†when Turner entered the courtroom. Olguin had seen Turner in court previously
and he told the prosecutor, prior to his testimony, he could not identify
Turner. Olguin testified: “I chose to block [the passenger’s face]
out. I turned away. I looked directly at him, whoever he was, and
turned away.†Olguin evaded service of
process in this case because he did not want to get involved.
Defense trial counsel, Arlene Binder,
testified Wayne Turner told her he heard Olguin tell Detective Governo that
Turner was not the shooter and the police had the wrong man. By the time Binder received this information,
Olguin had completed his testimony and had left the courtroom. Binder recalled looking in the hall for
Olguin and not seeing him. She did not
go to the elevator to look for him. The
same day Olguin testified, Binder asked the prosecutor to contact Olguin. However, Olguin had been staying at a
relative’s home, was no longer there and the People were unsure of his
whereabouts. Binder also had an
investigator attempt to locate Olguin.
Binder did not cross-examine Olguin because he did not identify
Turner. Binder did not move to suppress
the identifications based on an unduly suggestive photographic lineup because
Renteria had never previously mentioned a mole.
Thus, the police did not know a mole would be suggestive. Also, another individual in the lineup has
what appears to be acne and Number 6 also has a mole. Further, Binder wanted to argue Renteria had
never previously mentioned a mole.
Binder saw no basis upon which to object to the live lineup, noting
Chavez did not identify Turner at the live lineup.
Detective DiCroce testified Renteria
initially said Turner’s photograph was similar to the shooter’s appearance but,
after speaking with DiCroce, she wrote Turner exactly resembled the shooter.
Los
Angeles Police Detective Larry Burcher oversees the relocation of witnesses in
the Northeast Division. The jury reached
a verdict in this case on August 6, 2010.
On August 23, 2010, Burcher obtained an ex parte order authorizing
relocation assistance for Vilches but no funds were provided to Vilches.
Regarding
Olguin, Burcher testified the need to relocate Olguin arose on August 19,
2010, and he was relocated on that date.
Olguin was placed in a hotel for 10 days and he received $350 per
month toward his rent for two months. He
was also provided $1,000 in cash for food and incidentals.
With
respect to Velasquez, Burcher obtained an ex
parte court order on July 28, 2010, that allowed Velasquez to
receive relocation assistance not to exceed $5,000. Velasquez testified on July 30, 2010. No funds were provided to Velasquez before
the end of the trial and, as far as Burcher knows, Velasquez was unaware, at
the time of his testimony, that relocation assistance had been authorized. Burcher initiated the relocation process for
Velasquez because there had been recorded telephone conversations among Turner
and his family members in which Velasquez’s residence had been
discussed. Velasquez, his child, and his
child’s mother received a total of $4,358.29, consisting of a three-day hotel
stay that commenced on August 6, 2010, three months of rent at $820 per
month, and three monthly payments of $500.
Velasquez
testified at the hearing that when the subject of relocation was first raised,
he did not want to move because he lived with his mother near his job. However, Detective DiCroce advised Velasquez
to move for his safety and Velasquez asked to be relocated before he
testified. After Velasquez testified,
with relocation assistance, he moved into a new apartment on August 8 or 9,
2010. Velasquez was threatened at a bus
stop by Wayne Turner a week before he knew he had to come to court. On another occasion, two men dressed in
Avenues gang attire approached Velasquez’s girlfriend outside a medical office,
asked if she were Velasquez’s girlfriend and followed her to the train
station. On another occasion, Turner’s
mother saw Velasquez in a market and began cursing. Velasquez went outside to wait for his
girlfriend. A car carrying a group of
young males in Avenues gang apparel arrived, entered the store, spoke to Lopez,
came back outside and appeared to be looking for Velasquez.
Binder
was recalled and testified she was not advised during trial that Velasquez or
Vilches had been offered relocation assistance.
Andrea
Pott, the prosecutor, testified the court orders for expenditure of funds to
relocate witnesses were prepared in an abundance of caution after Velasquez
received threats. Because the State of
California did not have a budget in place at the time, relocation assistance
required a court order. Although the
defense was advised that Renteria and her family were relocated before the
first trial, defense counsel did not question Renteria at either trial about
the relocation assistance she received.
Also, on several occasions Pott advised defense counsel the People’s
witnesses might have to be relocated because defense counsel had jeopardized
their safety by giving Turner’s family discovery material.
Pott testified
Velasquez met with Binder in the courthouse cafeteria before the first
trial. According to Velasquez, Binder
misrepresented herself as a deputy district attorney and told Velasquez he
could ignore subpoenas. Velasquez did
not appear for Turner’s preliminary hearing or the first trial. After Vilchis unexpectedly identified Turner
in court, defense counsel asked for and received additional time to prepare to
cross-examine Vilchis. Pott opined
inquiry at trial into relocation assistance provided to the prosecution
witnesses would have lead to introduction of evidence of the intimidation of
witnesses by Turner and his family.
Turner contends the trial court abused
its discretion in admitting Velasquez’s statements to Chavez at the hospital,
and in failing to grant a new trial on the ground the prosecutor withheld
evidence of Olguin’s statement to Governo and offers of relocation assistance
to prosecution witnesses. Turner also contends
defense counsel rendered ineffective assistance in failing to move to suppress
identifications by Renteria and Chavez as the product of unduly suggestive
pretrial identification procedures, in failing to object to the identification
by Vilchis on the ground he failed to identify Turner in a photographic lineup,
in failing to recall Olguin after counsel learned Olguin told Governo that
Turner was not the shooter and in failing to object to the live lineup.
DISCUSSION
1.
Velasquez’s
testimony properly admitted.
Turner
contends the trial court abused its discretion in admitting Velasquez’s
testimony that Chavez told him, while he was under the influence of morphine
and after having undergone surgery,
the shooter was the guy they knew as “Snoopy or Snoop Dog†who had a mole on
his face. Turner contends Velasquez’s
testimony was not admissible as a prior identification under Evidence Code
section 1238.
However, the
testimony was admissible as a prior consistent statement under Evidence Code
sections 791 and 1236. Pursuant to these
provisions, a prior consistent statement is admissible,
notwithstanding the hearsay rule, if it is offered after an inconsistent
statement is admitted to attack the testifying witness’s credibility, where the
consistent statement was made before the inconsistent statement. (Evid. Code, § 791, subd. (a).)
Here,
Chavez identified Turner as the shooter at trial. However, the defense impeached the in-court
identification by cross-examining Chavez about his failure to identify Turner
at the live lineup. Thus, under Evidence
Code section 791, subdivision (a), Chavez’s prior consistent statement to
Velasquez at the hospital, that Turner was the shooter, was admissible to rehabilitate
Chavez’s in-court identification of Turner.
(People
v. Breaux (1991) 1
Cal.4th 281, 302.)
Also,
the trial court could have concluded Chavez’s failure to recall making any
statements to Velasquez at the hospital was
evasion and untruthful. (People v.
Sapp (2003) 31 Cal.4th 240, 296.) In
that case, Chavez’s statements
to Velasquez were admissible as prior inconsistent statements under
Evidence Code sections 770 and 1235.
Brown (1995) 35 Cal.App.4th 1585, 1596-1597.) To the
extent Chavez was retreating from his in-court identification, the prosecutor
was entitled to challenge the claimed failure of memory. (See People
v. Cowan (2010) 50 Cal.4th 401, 462; People v. Avila (2006) 38
Cal.4th 491, 579-580.)
In sum, the trial
court committed no error or abuse of discretion in permitting the People to
introduce evidence of Chavez’s statements to Velasquez at the hospital.
2.
The trial court properly denied
Turner’s motion for new trial.
a.
Olguin’s statement to Governo that
Turner was “the wrong guy.â€
Turner
contends Detective Governo’s failure to disclose Olguin’s statement that Turner
was not the shooter constituted a Brady
violation. Turner claims timely
disclosure of the statement would have permitted defense counsel to recall
Olguin to testify Turner was not the shooter and this testimony might have led
to acquittal.
Under Brady, the People must disclose to the defense all substantial
material evidence known to the prosecution that is favorable to the defendant,
even in the absence of a request. (Brady
v. Maryland, supra, 373 U.S. at
p. 87.) “There are three components of a
true Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.â€
(Strickler v. Greene (1999) 527 U.S. 263, 281-282, fn. omitted
[144 L.Ed.2d 286].) Prejudice, in
this context, focuses on “the materiality of the evidence to the issue of guilt
and innocence.†(United States v.
Agurs (1976) 427 U.S. 97,
112, fn. 20 [49 L.Ed.2d. 342].)
Materiality requires a showing of reasonable probability of a different
result. (Kyles v. Whitley (1995) 514 U.S. 419 [131 L.Ed.2d 490]; People
v. Verdugo (2010) 50 Cal.4th
263, 279.) “We independently
review the question whether a Brady violation has occurred, but give great weight to any trial
court findings of fact that are supported by substantial evidence. [Citation.]â€
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.).
Here,
in denying the motion for new trial, the trial court rejected the testimony of
Turner’s parents and impliedly found Olguin did not say, “that’s not the guyâ€
or “they have the wrong guy.†Rather,
the trial court apparently accepted the testimony of Olguin and Governo that
Olguin did not say Turner was not the shooter but might have asked something
like “is that the guy?†We accept the
trial court’s implicit findings of fact and conclude Turner has failed to establish
any of the components of a Brady violation.
The
assertedly withheld evidence was not
exculpatory or favorable to the defense in the context of this case. As the trial
court noted, Olguin did not identify Turner and testified “he didn’t see the
faces of the people.†Olguin’s
statement, “is that the guy†or something similar to it when Turner entered the
courtroom, was not material in that it was consistent with Olguin’s testimony
he could not identify Turner as the passenger in the white car. Thus, the failure to disclose the evidence did
not create a reasonable probability of a different outcome.
In
any event, because defense counsel was made aware of the evidence
almost immediately, it was not withheld or suppressed within the meaning
of Brady. (People
v. Salazar (2005) 35 Cal.4th 1031,
1049.) Defense counsel testified she learned of the
alleged statement after Olguin left the courtroom. Defense counsel immediately looked for Olguin
in the hallway and inquired of the prosecutor that day regarding his
whereabouts without success. Defense
counsel also asked her investigator to try to locate Olguin. The trial court impliedly credited this
testimony in denying the motion for new trial.
Thus, Turner’s claim of a Brady
violation fails.
b.
The offer of relocation assistance.
Turner contends the trial court abused
its discretion in failing to grant a new trial on the ground the prosecution
withheld evidence that Velasquez and Vilchis were offered relocation assistance
and cash incentives before they testified.
(Giglio v. United States (1972)
405 U.S. 150, 153-154 [31 L.Ed.2d 104] [prosecutor must disclose
inducements to witnesses].) Turner also
argues this issue with respect to Olguin.
He claims that, had this information been disclosed, the defense could
have argued the testimony of these witnesses was motivated by personal
gain.
Regarding Velasquez, two days before he testified, on July 28, 2012,
Detective Burcher obtained an ex parte order granting Velasquez relocation
funds up to $5,000. After he testified,
Velasquez, his child and his child’s mother were relocated and received $1,500
in cash. The
trial court found Velasquez rejected offers of relocation assistance prior to
his testimony and Detective Burcher sought the order “just in case.†Because Velasquez was not interested in relocation
assistance at the time of his testimony, there was nothing to disclose.
Regarding
Vilchis, Burcher did not obtain an ex parte order authorizing assistance until
more than two weeks after the verdicts and no funds were provided to Vilchis.
Regarding Olguin,
Burcher testified the need to relocate Olguin arose about two weeks after
Olguin testified. Olguin was placed in a
hotel for 10 days and he received approximately $1,700 toward rent, food
and incidentals. It therefore appears
there was no relocation assistance to disclose at the time of Olguin’s
testimony. Further, because Olguin did
not identify Turner at trial, disclosure of the offer of relocation assistance
to Olguin would not have altered the result of trial.
Finally, even assuming the
People should have disclosed the offers of relocation assistance or the ex
parte orders authorizing relocation assistance to these witnesses, no prejudice
can be shown. Any attempt to impeach
these witnesses on the basis they had been offered relocation assistance would
have led to the introduction of evidence these witnesses had been threatened by
Turner, his parents and Avenues gang members, thereby demonstrating
consciousness of guilt. Thus, it is
unlikely the defense would have inquired about relocation assistance even had
it been disclosed. Indeed, the defense
knew Renteria’s family was relocated before the first trial but did not inquire
of her at either trial. Because it is
apparent similar information with respect to these witnesses would not have
been presented to the jury, the trial court properly denied the motion for new
trial.
3.
General principles related to Turner’s
remaining claims.
a.
Ineffective
assistance of counsel.
“In
order to establish a claim of ineffective assistance of counsel, defendant bears the burden of
demonstrating, first, that counsel’s performance was deficient because it ‘fell
below an objective standard of reasonableness [¶] . . . under prevailing
professional norms.’ [Citations.] Unless a defendant establishes the contrary,
we shall presume that ‘counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.’
[Citation.] If the record ‘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 unless there
simply could be no satisfactory explanation.’
[Citations.]†(People v.
Ledesma (2006) 39 Cal.4th 641, 745-746.)
Unduly suggestive identification
procedures.
Due process requires the exclusion
of identification testimony only if the identification procedure “is ‘so
impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.’
[Citation.]†(People v. Cook
(2007) 40 Cal.4th 1334, 1355.) The
defendant bears the burden of showing the identification procedure used in any
case was suggestive and unreliable. (People v. Avila (2009) 46 Cal.4th
680, 700; People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
“ ‘Because human beings do not look
exactly alike, differences are inevitable.
The question is whether anything caused defendant to “stand out†from
the others in a way that would suggest the witness should select him.’ [Citation.]â€
(People v. Gonzalez (2006) 38 Cal.4th 932, 943; People v.
Cunningham (2001) 25 Cal.4th 926, 990.)
If the identification procedure is
not unduly suggestive, inquiry into the
due process claim ends. (People v. Ochoa (1998) 19
Cal.4th 353, 412.)
be unduly suggestive, a witness’s identification testimony is only inadmissible
if the totality of the circumstances suggests a very substantial likelihood of
irreparable misidentification. (People
v. Arias (1996) 13 Cal.4th 92, 168.)
We independently review a claim that an identification procedure is
Gonzalez, supra, 38 Cal.4th at p.
943.)
4.
Failure to object to Renteria’s identification.
Turner contends defense counsel should
have objected to Renteria’s in-court identification because it was based on an
unduly suggestive photographic lineup.
Turner claims a mole on his upper lip jumps out at the viewer and
makes his photograph stand out from the others in People’s Exhibit 40 in a way
that suggested Turner should be selected.
Also, Turner is the youngest person in the photographic lineup and the
only person who appears to be similar in age to the alleged shooter, i.e., 16
to 19 years. Turner also claims the
photographic lineup was suggestive because, in a recorded interview on October
31, 2010, Detective DiCroce asked Renteria if the shooter had a mole, thereby
suggesting the shooter might have a mole.
Turner claims the taint of the photographic lineup carried over to the
live lineup, depicted in Exhibit 32, where he again was the only juvenile and
the only individual with a mole.
We have ordered the trial exhibits
transmitted from the superior court and have examined Exhibit 40 and conclude
the photographic lineup was
not unduly
males in the lineup appear youthful and of the same approximate age. Turner does not stand out as the youngest
individual. Further, all of the
with a medium build and closely cropped, dark colored hair, with the same
approximate skin tone. Each of the
individuals has a similar facial expression and all of the
were taken against a neutral background. Although Turner is depicted with a mole on his
upper lip, as stated at the hearing on the motion for new trial, two other
individual depicted in the photographic lineup have facial marks, one with acne
and the other with a mole.
Also, the photograph of Turner is grainy such that the mole on his
upper lip is less prominent than it is in other pictures of Turner contained in
the record.
Thus, there is no basis for us to conclude Turner’s mole caused him to
“ ’stand out’ from the others in
a way that would suggest the witness should select him.â€
(People v. Gonzalez, supra, 38 Cal.4th at p. 943.) Further, “there is no
requirement that a defendant in a lineup, either in person or by photo, be
surrounded by others nearly identical in appearance. [Citation.]â€
(People v. Brandon (1995) 32 Cal.App.4th 1033, 1052; People v.
Johnson (1992) 3 Cal.4th 1183, 1217-1218 [only the defendant wore jail
clothing in photographic lineup]; People v. DeSantis, supra, 2 Cal.4th
at p. 1222 [perpetrator wore a red jacket and only the defendant wore a red
shirt in photographic lineup].)
Renteria’s identification of Turner on the grounds suggested by Turner would
not have succeeded. Because the
photographic lineup was not unduly suggestive, there was no taint to carry over
to the live lineup. As a result,
Turner cannot demonstrate ineffective assistance. “[T]rial counsel is not required to make
frivolous or futile motions, or indulge in idle acts. [Citations.]â€
(People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409; People
v. Boyette (2002) 29 Cal.4th 381, 424.)
Further,
contrary to Turner’s assertion, Detective DiCroce’s inquiry of Renteria in the
tape recorded interview as to whether the shooter had a mole was not
suggestive. There was no evidence
DiCroce suspected the shooter had a facial mole at the time of the
interview. Also, DiCroce asked the
question in passing in the course of an extended interview. Thus, nothing about DiCroce’s interrogation
of Renteria suggested she should select Turner’s photograph or rendered her
identification of Turner inadmissible.
Finally, defense counsel testified she
decided, as a tactical matter, to exploit the infirmities of Renteria’s
identification including her identification of “Fatal†at the scene, her
failure to mention Turner’s facial mole before she was shown the photographic
lineup, her improper conduct in photographing the photographic lineup and her
admitted reliance on the photographic lineup to select Turner at the live
lineup. By proving Renteria’s
identification was tainted, defense counsel reasonably sought to undermine the
reliability of identifications by other eyewitnesses, primarily Chavez.
Defense
counsel presented expert testimony to support the defense theory. The eyewitness identification expert
testified the most accurate identifications are made in initial
descriptions. Also, details are very
important and a live lineup is not reliable if “one of the alternatives looks
familiar because you have seen him in a prior test . . . .â€
Thus, in addition to there being no
basis upon which to object to the photographic lineup as unduly suggestive, the
record affirmatively discloses a reasonable tactical explanation for the
challenged act or omission.
Consequently, the claim of ineffective assistance fails. (People
v. Weaver (2001) 26 Cal.4th 876,
925-926; People v. Majors (1998) 18 Cal.4th 385, 403; People v. Lucas (1995)
12 Cal.4th 415, 436-437.)
5.
Failure to object to Chavez’s
identification.
Turner contends defense counsel should
have objected to Chavez’s in-court identification as the product of the unduly
suggestive live lineup. However, Chavez
did not make an identification at the live lineup. Thus, there was no pretrial basis upon which
to object to Chavez’s identification of Turner,
At
trial, Chavez testified he feared gang
retaliation but identified Turner as the individual with whom he had a
face-to-face confrontation in which they engaged in gang dialogue before Turner
started shooting. Additionally,
Velasquez’s testimony indicated Chavez and Turner knew each other in middle
school. Based on this record, any
attempt to exclude Chavez’s in-court identification of Turner would have
failed. The fact Chavez failed to
identify Turner in the live lineup went to the weight to be accorded Chavez’s
in-court identification, not its admissibility.
In
any event, we have examined the trial exhibits related to the live lineup
(Exhibit 32), and conclude it was not unduly suggestive as the
participants are all of the same approximate age and appearance. (People
v. Gonzalez, supra, 38 Cal.4th at p. 943.)
Thus, defense counsel did not render ineffective assistance in failing
to seek suppression on the grounds asserted by Turner on appeal. (People v.
Boyette, supra, 29 Cal.4th at
p. 424; People v. Reynolds, supra,
181 Cal.App.4th at p. 1409.)
Turner
argues defense counsel should have explored whether Turner seemed familiar to
Chavez because they attended middle school together. However, Velasquez testified outside the
presence of the jury that he attended middle school with Turner. Defense counsel could conclude Chavez,
Velasquez’s brother through legal guardianship, also attended middle school with
Turner or knew Turner. It therefore appears
defense counsel reasonably avoided inquiry in this area to prevent the jury
from learning Chavez, in fact, recognized Turner from middle school, thereby
strengthening the identification.
No
ineffective assistance of counsel appears.
6. Failure
to object to Detective Carrillo’s
testimony.
Turner contends defense counsel should
have objected to Detective Carrillo’s testimony that Chavez told him, after the
live lineup, he recognized Turner “from that day†but did not write it on the
statement card because Turner did not have a goatee. Turner claims Carrillo’s testimony was
inadmissible because it did not qualify as a prior identification under
Evidence Code section 1238.
However,
Chavez’s statement to Detective Carrillo properly was admitted as a prior
consistent statement. Evidence Code section 791, subdivision (b) makes admissible
evidence of a witness’s prior consistent statements to rebut “[a]n express or
implied charge . . . his testimony at the hearing is recently fabricated or is
influenced by bias or other improper motive.â€
The party seeking to introduce a prior consistent statement must show “
‘the statement was made before the bias, motive for fabrication, or
other improper motive is alleged to have arisen.’ (Italics added.)†(People
v. Ainsworth (1988) 45 Cal.3d 984, 1014.)
Generally, a consistent statement
made after an improper motive
is alleged to have arisen is inadmissible.
(People v. Gentry (1969) 270 Cal.App.2d 462, 473.) However, when impeachment with a prior
inconsistent statement implicitly accuses the witness of developing a motive to
fabricate his or her testimony at the time of trial, a consistent
statement made prior to trial is admissible even if the consistent statement
did not precede the inconsistent statement.
(People v. Ainsworth, supra,
45 Cal.3d at pp. 1014-1015; see People
v. Williams (2002) 102 Cal.App.4th 995, 1011-1012.) Under these cases, when a witness is
implicitly accused of fabricating his or her testimony at trial, a prior
consistent statement made before trial is admissible.
Here, Chavez
identified Turner as the shooter on direct examination. The defense cross-examined Chavez with
respect to his failure to identify Turner at the live lineup, thereby
impeaching his credibility and suggesting the in-court identification was a
recent fabrication. Thus, the
People were entitled to introduce evidence of Chavez’s prior consistent
statement identifying Turner under Evidence Code section 791, subdivision (b). Consequently, defense counsel was not
ineffective in failing to object to Detective Carrillo’s testimony.
In
any event, given Chavez’s in-court identification of Turner, any error in the
admission of Chavez’s statements to Detective Carrillo must be seen as
harmless. Chavez’s identification was
strong evidence of guilt. The evidence
suggested Chavez attended middle school with Turner, recognized him and
exchanged gang statements before Turner fired numerous shots at Chavez and
Betancor. Even had Detective Carrillo’s
testimony been excluded, no different result would have obtained.
7.
Failure to recall Olguin.
Turner
contends defense counsel rendered ineffective assistance in failing to ask the
trial court to order Olguin returned to the courtroom before the electronic
tracking bracelet was removed so Olguin could be recalled to the witness stand
or interviewed. Turner further complains
defense counsel should have inquired of Governo or asked the prosecutor to have
Governo write a report about the incident.
Turner concludes defense counsel’s omissions deprived him of a
meritorious defense, in that, by the time of the hearing on the motion for new
trial, neither Governo nor Olguin could recall exactly what Olguin had
said.
This contention
fails. Based on the evidence presented
at the hearing, it appears defense counsel learned of the statement after
Olguin left the witness stand. Defense
counsel thereafter acted reasonably in looking for Olguin in the hallway and
asking the prosecutor for assistance in locating Olguin. To the extent Turner suggests other or
additional actions defense counsel might have undertaken, “[t]here are countless
not
a particular client in the same way.†(Strickland v. Washington (1984) 466 U.S. 668, 689.) Under
these circumstances, counsel cannot be said to have performed deficiently.
In any event, as has been noted, even
had Olguin been recalled, Olguin testified at the hearing he never made the
statement, he had seen Turner in court previously and he would not recognize
the passenger if he saw him again. We
have no reason to believe he would have testified differently had he been
recalled, especially given that he previously had seen Turner in court. Admission of this evidence would have had no
effect on the outcome of the trial.
8.
Failure
to object to Vilchis’s identification testimony.
Vilchis
was shown a photographic lineup before trial which contained the same picture
of Turner as was used in Exhibit 40.
Vilchis said another individual in the photographic lineup looked most
like the shooter. At a side bar
conference during trial, the prosecutor indicated Vilchis was now able to
identify Turner. Thereafter, Vilchis
testified he “kind of†recognized Turner as the shooter, but Turner’s hair was
now shorter. Vilchis indicated Turner’s
face “came back†when Vilchis entered the courtroom.
Turner
contends defense counsel should have objected to this testimony as the product
of an unduly suggestive photographic lineup.
Turner claims that, because he was the only individual with a mole in
the lineup, it caused him to stand out.
He also claims Vilchis’ in-court identification was suggestive because
he was the only juvenile with a mole seated at counsel table.
These
claims are meritless. Vilchis did not
select Turner’s photograph in the photographic lineup. Thus, Turner cannot be heard to complain it
was unduly suggestive. Further, the
photographic lineup shown to Vilchis, Defense Exhibit A, is similar to the photographic
lineup shown to Renteria, People’s Exhibit 40, and neither is unduly
suggestive. Consequently, there was no
basis upon which to object to the in-court identification. The failure to identify Turner at the
photographic lineup, as well as the fact Turner was the only juvenile in
the courtroom with a mole on his face, went to the weight to be accorded
Vilchis’ in-court identification, not its admissibility. No ineffective assistance of counsel
appears.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We
concur:
CROSKEY, J.
KITCHING, J.
title="">[1] Former Penal Code
section 12101, subdivision (a)(1) was repealed and reenacted without
substantive change as Penal Code section 29610. (See Stats.
2010, ch. 711 (S.B. 1080), § 6, operative Jan. 1, 2012.)
name="_ftn2" title="">[2] Velasquez and
Chavez testified they are
like brothers; Velasquez’s mother is Chavez’s legal guardian.
