P. v. Briggs





















Filed 1/23/13 P. v. Briggs CA3











NOT TO BE PUBLISHED











California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(San
Joaquin)






>

THE PEOPLE, Plaintiff and Respondent, v. BRYANT KEITH BRIGGS, Defendant and Appellant.

C064743 (Super. Ct. No. SF106351A)

A
jury convicted defendant Bryant Keith Briggs of href="http://www.mcmillanlaw.com/">residential
robbery ( ADDIN BA xc <@st> xl 16 s
BRKTNH000001 xpl 1 l "Pen. Code, § 211" Pen.
Code, § 211)href="#_ftn1" name="_ftnref1" title="">[1], href="http://www.mcmillanlaw.com/">residential
burglary ( ADDIN BA xc <@osdv> xl 5 s
BRKTNH000045 xpl 1 l "§ 459" § 459),
attempted
murder ( ADDIN BA xc <@osdv> xl 10 s
BRKTNH000046 xpl 1 l "§§ 664/187" §§ 664/187),
false imprisonment ( ADDIN BA xc <@osdv> xl 5 s
BRKTNH000047 xpl 1 l "§ 236" § 236),
and possession
of cocaine base for sale ( ADDIN BA xc <@st> xl 29 s
BRKTNH000002 xpl 1 l "Health & Saf. Code, § 11351.5" Health
& Saf. Code, § 11351.5).
The jury further found true allegations that defendant personally
inflicted great bodily injury on the victim and personally used a firearm in
the commission of the offense. (name="_BA_Cite_74"> ADDIN BA xc <@osdv> xl 41 s
BRKTNH000048 xpl 1 l "§§ 12022.7, subd. (a), 12022.5, subd. (a)" §§ 12022.7,
subd. (a), 12022.5, subd. (a).)

After the trial court denied
defendant’s motion for new trial, it sentenced him to a term of 33 years and 8
months to life in prison.

Defendant argues: (1) the prosecutor’s use of peremptory
challenges to remove two prospective jurors was based on group bias, (2) there
was insufficient evidence that he possessed crack cocaine, (3) the trial court
erred in instructing the jury it could consider the witness’s level of
certainty in evaluating an eyewitness’s identification, and (4) he received
ineffective assistance of counsel.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the offenses, the
victim, David Campbell, regularly got high, his drug of choice being crack
cocaine. He went to the Jamestown
Apartments because it was a gathering place for people to go to get and use drugs. On the date in question, he went to apartment 232 with Shonda Batson to get high and have
sex. Campbell brought crack cocaine with him, which the
two of them smoked.

After they smoked all of the crack
he brought with him, they decided they wanted more. Campbell had no more money. Batson told Campbell she had some money and knew someone from
whom she could buy drugs. She agreed to
go get more drugs.

When Batson returned to the
apartment, she had defendant with her. Campbell saw Batson give money to defendant and saw
defendant give crack cocaine to Batson. Campbell was hazy on the specifics, but he
remembered defendant saying something about money being owed and pointing to
him (Campbell). Campbell told defendant he just wanted the dope.

Batson proceeded to smoke the dope
she purchased, and did not give any to Campbell. Campbell decided to leave, and went out to the
walkway outside the apartment. Defendant
was on the walkway. He told Campbell that Campbell owed him money for the dope. Campbell said he hadn’t smoked any of the dope, and
owed him no money. Defendant told Campbell that they needed to go back into the
apartment and talk about it. About that
time another man came up behind them, identified as Harvest Thomas, and Campbell felt surrounded. Campbell went back into apartment 232 with defendant and Thomas, because he felt
there would be violence if he refused.

After the trio was inside the
apartment and the door was closed, defendant and Thomas pulled guns on Campbell and demanded money. Thomas hit Campbell on the side of the head with his gun. Campbell opened his wallet to show that he had no
money.

Defendant then demanded that Campbell take off his clothes. When Campbell had undressed, defendant told him to go
outside. Campbell refused. Campbell, deciding to fight back, grabbed
Thomas, threw him across the stair rail, and grabbed his gun. Campbell and Thomas struggled. Defendant dived on top of them and the three
fell onto the couch. Defendant pointed
his gun at Campbell and shot him in the head.

Campbell survived the gunshot
wound. He was treated in the emergency
room for a gunshot wound to the left temple.
The bullet lodged in Campbell’s neck.
Blood tests indicated Campbell’s blood alcohol level was 0.097, and his
urine tested positive for cocaine.

Campbell picked defendant and Thomas
out of separate photo lineups. When
Campbell was shown defendant’s photograph he stated “He’s . . . the guy that
shot me.”

Law enforcement first searched
Thomas’s residence. One of the items
seized was a cell phone. There were
pictures in the cell phone of clear plastic baggies containing a substance, of
clear plastic baggies containing money, and of an individual fanning money. Also, the address book of the cell phone
contained the name Brian and a phone number that was previously defendant’s
phone number.

The next day, officers searched
apartment 222 at the Jamestown Apartments, which belonged to defendant’s
mother. The search uncovered a repair
receipt, in defendant’s name for an automobile, and a mini scale.

Defendant was arrested in apartment
231 of the Jamestown Apartments, the apartment directly next door to the
apartment where the shooting occurred.
In a search incident to the arrest, the officers found $886 in cash,
three grams of marijuana packaged for sale, a small gram scale, a notebook
which had buy-owe notations, and some .38‑caliber bullets.

DISCUSSION

I

Wheeler/Batson Motion

During jury voir dire, defense
counsel made a motion under ADDIN
BA xc <@cs> xl 57 s BRKTNH000003 xhfl Rep l ">Batson v. Kentucky (1986)476 U.S. 79, 97 [90
L.Ed.2d 69]" >Batson v. Kentucky (1986) 476 U.S. 79,
97 [90 L.Ed.2d 69] ( ADDIN BA xc <@$cs> xl 6 s
BRKTNH000003 xpl 1 Batson)
and ADDIN
BA xc <@cs> xl 47 s BRKTNH000004 xhfl Rep l ">People v. Wheeler (1978)22 Cal.3d 258, 276-277"
>People v. Wheeler (1978) 22 Cal.3d 258,
276-277 ( ADDIN BA xc <@$cs> xl 7 s
BRKTNH000004 xpl 1 Wheeler),
arguing that the prosecutor had systematically excluded African‑Americans
from the jury. The trial court ruled
that defendant had not established a prima facie case of racial bias. Defendant raises the issue again on appeal.

In reviewing the trial court’s
ruling, the “dispositive question . . . is whether defendant made a prima facie
case of group bias.” (name="_BA_Cite_77"> ADDIN BA xc <@cs> xl 44 s
BRKTNH000005 xhfl Rep xpl 1 l "People v.
Howard (2008)42 Cal.4th 1000,1016" >People v. Howard (2008) 42 Cal.4th 1000,
1016.) Where, as here, it is
unclear what standard the trial court used to make its determination, we review
the record independently to determine whether defendant made a
“ ‘ “showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” [Citations.]’ [Citations.]” ( ADDIN BA xc <@$id> xl 20 s ID
xhfl Rep xpl 1 Id.
at pp. 1016-1017.) Having reviewed the
record, we find no inference of discrimination was established. Defense counsel cited two potential
jurors excused by the prosecutor. The
first was T.A. Defense counsel made the
following comments about T.A.: “She was
another African American female in my opinion.
[¶] . . . [T.A.] was employed, eligibility worker, Alameda County. Said she could be fair. She answered all the questions properly. She did have a brother who was convicted of
possession for sales. She said she could
put that behind her. We kept her on the
panel quite sometime [sic], and then
for no apparent reason, as far as I can understand, she was excused.”

Defense counsel made the following
comments about L.D.: “I believe that
[L.D.] . . . she had [a] Hispanic surname but to me she was clearly
black, African American. That was my
take on it, Your Honor. [¶] . . . [¶]
. . . She was a supervisor at Home Depot, supervised three hundred
people, had three girls, answered all questions properly. Was left on the jury quite some time. And for no apparent reason as far as I can
tell, she was excused.”

Defense counsel also stated that
defendant and the victim in the case were African-American. The prosecutor referred to the fact that two
other African‑American prospective jurors had been excused for
cause. One was excused for cause because
she was breast‑feeding. One was
excused for cause because defense counsel had previously represented the man’s
son. Defense counsel stated that as of
the time of the motion there were no other African‑Americans on the
jury. Following the motion, one more
juror and three alternate jurors were seated.
The record does not indicate their race.

The trial court first asked the
prosecutor if he agreed that L.D. was African‑American, stating that it
did not appear to the court that she was.
The prosecutor, who was African‑American, stated that L.D. “did
not in any way appear African American.
Her complexion is [a] little bit darker than some individuals who happen
to be Hispanic. She certainly seems to
[fall] within the [ambit] of that social, racial group, however you classify
that.”

The prosecutor then proceeded to
justify his challenges to the two potential jurors. He stated that the primary reason he excused
T.A. was that her brother had been convicted for the sale of drugs, and he was
dissatisfied with her answers when she was questioned about it. When asked, she stated: “He did it.
He got caught.” T.A. was one of
the first potential jurors questioned, and as voir dire went along, the
prosecutor stated he thought other jurors would be better, strategically, for
the prosecution.

As to L.D., the prosecutor stated
that her work was a positive factor in her favor, but that she had three young
children and appeared to be under the age of 30. The prosecutor stated: “I didn’t feel she had enough life experience
based on what she outlined to be able to be on this particular jury. [¶] My
preference in regards to jurors are individuals who are above the age of
35. If they’re above the age of 35, I
generally feel they have enough life experience to be able to, number one,
understand and pick up on credibility issues which come up on the stand. So based on that, I felt there was a superior
juror. [¶] . . . [¶] Each of the
individuals [who were put in L.D.’s chair] were all older than [L.D.] That’s the primary reason I moved her down. It was a question of strategy. There was no other rationale for doing so.”

In this case defendant failed to
make a sufficient showing that L.D. was a member of the racial group he
asserted the prosecution was attempting to keep off the jury. Although defense counsel asserted that L.D.
was Black, she had a Hispanic surname, and both the court and the prosecutor
disagreed that L.D. was African‑American.

ADDIN
BA xc <@$cs> xl 13 s BRKTNH000003 xhfl XRef >Batson set forth a three step
process to be utilized by the trial court in reviewing the constitutionally of
peremptory strikes, and those steps “should by now be familiar.” ( ADDIN BA xc <@cs> xl 64 s
BRKTNH000006 xhfl Rep xpl 1 l "Johnson v.
California (2005)545 U.S. 162, 168 [162 L.Ed.2d 129]" >Johnson v. California (2005) 545 U.S.
162, 168 [162 L.Ed.2d 129,
138] (
ADDIN BA xc <@$cs> xl 7 s BRKTNH000006 xpl 2 Johnson).) “First, the defendant must make out a href="http://www.fearnotlaw.com/">prima
facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.name=F00542006791983>’ [Citations.]
Second, once the defendant has made out a prima facie case, the ‘burden
shifts to the State to explain adequately the racial exclusion’ by offering
permissible race-neutral justifications for the strikes. [Citations.]
Third, ‘[i]f a race-neutral explanation is tendered, the trial court
must then decide . . . whether the opponent of the strike has proved purposeful
racial discrimination.’
[Citation.]” (name="_BA_Cite_80"> ADDIN BA xc <@$id> xl 18 s ID xhfl
Rep xpl 1 Id. at p. 168, fn. omitted.)

Defendant asserts that because the
trial court required the prosecutor to state the reasons for his peremptory
challenges, the question of whether defendant established a prima facie case is
moot. We reject this contention.

“[A] trial court’s request that the
prosecutor provide reasons for his or her exercise of a peremptory challenge is
not an implicit finding the defendant has established a prima facie case, and
does not moot the issue, in every instance.
‘In determining whether to infer a trial court’s finding of a prima
facie case under ADDIN
BA xc <@$cs> xl 7 s BRKTNH000004 Wheeler,
we look to the whole record, examining the court's remarks in context.’
[Citation.]” ( ADDIN BA xc <@cs> xl 47 s
BRKTNH000007 xhfl Rep xpl 1 l "People v.
Taylor (2010)48 Cal.4th 574, 612-613" >People v. Taylor (2010) 48 Cal.4th
574, 612-613.)

Viewing the record as a whole and
examining the remarks of the trial court and the prosecutor in context, it is
clear the trial court did not require the prosecutor to state his reasons for
challenging either juror. With respect
to T.A., the prosecutor volunteered his reasons without any prompting by the
trial court. After finding that the
defense had not established a prima facie case as to L.D. for the reason that
the defense failed to establish that L.D. is a member of a cognizable group,
the court asked the prosecutor, “would you be willing to give us your reasons
with regard to [L.D.] even though [defense counsel] has not established . . .
[¶] . . . [¶] . . . that person was African American?” After acknowledging that a pattern of
discrimination is not required, the trial court repeated the request, asking,
“If you don’t mind, I’d like you to share your reasoning with [L.D.]” The prosecutor responded, “Not at all. I appreciate the opportunity.”

The words, “would you be willing”
and “[i]f you don’t mind” connote a request, not a directive to provide
justification for the challenge. The
request apparently was made for the sole purpose of creating a record on
appeal. (See ADDIN
BA xc <@$cs> xl 45 s BRKTNH000007 xhfl Rep xpl 1 People v. Taylor, supra, 48 Cal.4th at p. 613.) Indeed, there would be no reason to require a
justification after the trial court ruled that defendant had not established
L.D. was a member of a cognizable group.
Moreover, the trial court did not expressly accept the prosecutor’s
reasons for excusing either juror. (See name="_BA_Cite_84"> ADDIN
BA xc <@cs> xl 49 s BRKTNH000008 xhfl Rep xpl 1 l ">People v. Mills (2010)48 Cal.4th 158, 174, fn. 3" >People v. Mills (2010) 48 Cal.4th 158,
174, fn. 3 [distinguishing between cases where the court does not
expressly accept the prosecutor’s reasons and cases where the court expressly
accepts the prosecutor’s reasons -- in the latter situation, the prima facie
issue is moot; in the former, it is not].)
Thus, nothing the court did converted the Batson step-one analysis into a step-three analysis.

Defendant contends that comparative
juror analysis establishes a prima facie case of discrimination and ultimately
proves discrimination. He cites name="_BA_Cite_85"> ADDIN
BA xc <@cs> xl 57 s BRKTNH000009 xhfl Rep l ">Miller-El v. Dretke (2005)545 U.S. 231 [162
L.Ed.2d 196]" >Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] and name="_BA_Cite_86"> ADDIN BA
xc <@cs> xl 57 s BRKTNH000010 xhfl Rep l ">Snyder v. Louisiana (2008)552 U.S. 472 [170
L.Ed.2d 175]" >Snyder v. Louisiana (2008) 552 U.S. 472 [170 L.Ed.2d 175] for the proposition
that appellate courts should engage in comparative analysis in reviewing a
trial court’s prima facie case determination.

The California Supreme Court has
repeatedly stated that comparative analysis is a ADDIN
BA xc <@$cs> xl 6 s BRKTNH000003 >Batson step-three tool and
appellate courts need not employ it in a ADDIN
BA xc <@$cs> xl 6 s BRKTNH000003 Batson
step-one review. ( ADDIN BA xc <@$cs> xl 50 s
BRKTNH000007 xhfl Rep xpl 1 >People v. Taylor, supra, 48 Cal.4th at
pp. 616-617 [“ ‘[w]hatever use comparative juror analysis might
have in a third-stage case for determining whether a prosecutor's proffered
justifications for his [or her] strikes are pretextual, it has little or no use
where the analysis does not hinge on the prosecution's actual proffered
rationales . . . .’ ( ADDIN BA xc <@ocsn> xl 17 s
BRKTNH000049 xpl 3 l "People v. Bonilla" People
v. Bonilla, [(2007)]
ADDIN BA xc <@oppt> xl 10 s
BRKTNH000050 xpl 3 l "41 Cal.4th" 41
Cal.4th [313,] 350.)”]; ADDIN
BA xc <@cs> xl 79 s BRKTNH000011 xhfl Rep xpl 1 l ">People v. Hawthorne (2009)46 Cal.4th 67, 80, fn. 3,
overruled on other grounds" >People v. Hawthorne (2009)
46 Cal.4th 67, 80, fn. 3, overruled on other grounds in name="_BA_Cite_91"> ADDIN
BA xc <@cs> xl 49 s BRKTNH000012 xhfl Rep xpl 1 l ">People v. McKinnon (2011)52 Cal.4th 610, 637-644"
>People v. McKinnon (2011)
52 Cal.4th 610, 637-644.)
Thus, we need not engage in comparative juror analysis in this case.

We turn to the defendant’s showing
of purposeful discrimination to determine whether he has established that a
reasonable inference of discrimination can be drawn from the facts. ( ADDIN BA xc <@cs> xl 42 s
BRKTNH000013 xhfl Rep xpl 1 l ">People v. Ayala (2000)24
Cal.4th 243, 260" People
v. Ayala (2000) 24 Cal.4th 243, 260; ADDIN
BA xc <@cs> xl 46 s BRKTNH000014 xhfl Rep xpl 1 l ">People v. Howard,supra, 42 Cal.4th at p. 1016"
>People v. Howard, supra, 42 Cal.4th at
p. 1016.)

There are many ways in which a party
may attempt to show that potential jurors are being challenged because of the
group association rather than because of any specific bias. A party may show that the opponent “struck
most or all of the members of the identified group from the venire, or has used
a disproportionate number of his peremptories against the group.” ( ADDIN BA xc <@$cs> xl 35 s
BRKTNH000004 xhfl Rep xpl 1 >Wheeler, supra, 22 Cal.3d at p. 280,
rejected on another point in ADDIN
BA xc <@$cs> xl 60 s BRKTNH000006 xhfl Rep xpl 1 >Johnson, supra, 545 U.S. 162 [1162
L.Ed.2d 129].) A party may
also show “that the jurors in question share only this one characteristic[,]
their membership in the group[,] and that in all other respects they are as
heterogeneous as the community as a whole.”
(> ADDIN BA xc <@$id> xl 5 s ID xpl
1 Wheeler,
at p. 280, fn. omitted.) A party may
supplement a showing of discrimination by demonstrating that the other side
failed to engage the jurors in question in “more than desultory voir dire, or
indeed to ask them any questions at all.”
(
ADDIN BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Id. at p. 281.)

Here, defendant argued
discrimination could be inferred from the fact that the prosecution excused all
the African‑American potential jurors.
In this case, that was a single potential juror. “[T]he small absolute size of this sample
makes drawing an inference of discrimination from this fact alone
impossible.” ( ADDIN BA xc <@cs> xl 41 s
BRKTNH000015 xhfl Rep xpl 1 l "People v. Bell (2007)40
Cal.4th 582, 598" >People v. Bell (2007)
40 Cal.4th 582, 598.)

We cannot infer improper
discrimination from the record in this case where the prosecution excused a
single African‑American juror, and there was an absence of other evidence
that the juror was excused for a discriminatory purpose. That juror had a brother who had been
convicted of selling drugs--a charge that was also made against defendant.

Finally, when there is a lack of
motive to exercise challenges based on group bias because race is not a factor
in the case, courts have viewed this circumstance as a factor cutting against a
prima facie finding of discrimination.
There is a lack of motive to discriminate when, as here, the defendant
and the victim are of the same race. (name="_BA_Cite_98"> ADDIN BA xc <@cs> xl 50 s
BRKTNH000016 xhfl Rep xpl 1 l "People v.
Cleveland (2004)32 Cal.4th 704, 733-734" >People v. Cleveland (2004) 32 Cal.4th
704, 733-734; ADDIN
BA xc <@cs> xl 48 s BRKTNH000017 xhfl Rep xpl 1 l ">People v. Perez (1996)48 Cal.App.4th 1310, 1315" >People v. Perez (1996) 48 Cal.App.4th
1310, 1315.)

Defendant failed to establish a
prima facie case of discrimination.
Therefore, the trial court properly denied the Wheeler/Batson motion.

II

Sufficiency of the Evidence

Defendant claims there was
insufficient evidence to support his conviction on count five, possession of
cocaine base for sale, because the person who ingested the substance did not
testify and there was no expert testimony establishing that the substance was
crack cocaine. ( ADDIN BA xc <@$st> xl 29 s BRKTNH000002
xpl 1 Health
& Saf. Code, § 11351.5.)
We disagree.

Campbell testified that the drug he
saw defendant sell to Batson was crack cocaine.
As a regular user of the drug, he was familiar with crack cocaine. He testified that he and Batson were smoking
crack cocaine, and that when they ran out, Batson left the apartment to get
more. She returned to the apartment with
defendant. Campbell testified he saw
defendant sell Batson crack cocaine.
After Batson purchased the crack cocaine, she proceeded to smoke it
while she was sitting with Campbell.
Batson smoked the crack from a pipe.

Campbell also reported the
circumstances to the investigating officer, who gave an account of the report
at trial. Campbell told the officer that
he and Batson were going to smoke rock cocaine together, but that he did not
get any of the rock cocaine.

The jury was instructed that a
conviction under ADDIN
BA xc <@$st> xl 38 s BRKTNH000002 Health
and Safety Code section 11351.5 required the prosecution to prove: “One, the defendant unlawfully possessed a
controlled substance; [¶] Two, the defendant knew of its presence; [¶] Three,
the defendant knew of the substance’s nature or character as a controlled
substance; [¶] Four, when the defendant possessed the controlled substance, he
intended to sell it; [¶] Five, the controlled substance was cocaine base; [¶]
And, six, the controlled substance was in a usable amount.” Defendant contends the prosecution failed to
prove the fifth element--that the substance was cocaine base.

“ ‘ “In reviewing a name="sp_4040_1015">name="citeas((Cite_as:_44_Cal.4th_983,_*1015,_">criminal conviction
challenged as lacking evidentiary support, ‘ “the court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” [Citation.]’
[Citation.]” [Citations.] “An appellate
court must accept logical inferences that the jury might have drawn from the
evidence even if the court would have concluded otherwise. [Citation.]”
[Citation.]’ [Citation.]” (name="_BA_Cite_102"> ADDIN BA xc <@cs> xl 51 s
BRKTNH000018 xhfl Rep xpl 1 l "People v.
Hovarter (2008)44 Cal.4th 983, 1014-1015" >People v. Hovarter (2008) 44
Cal.4th 983, 1014-1015.)

Substantial evidence includes
circumstantial evidence together with the reasonable inferences that may be
drawn from such evidence. (name="_BA_Cite_103"> ADDIN BA xc <@cs> xl 51 s
BRKTNH000019 xhfl Rep xpl 1 l "People v.
Ugalino (2009)174 Cal.App.4th 1060, 1064" >People v. Ugalino (2009) 174 Cal.App.4th
1060, 1064.) “[T]he nature of
a substance, like any other fact in a criminal case, may be proved by
circumstantial evidence.” (name="_BA_Cite_104"> ADDIN BA xc <@cs> xl 51 s BRKTNH000020
xhfl Rep xpl 1 l "People v. Sonleitner (1986)183
Cal.App.3d 364, 369" >People v. Sonleitner (1986) 183
Cal.App.3d 364, 369.)

The jury drew the reasonable
inference that the substance Batson procured from defendant was crack cocaine from
the following facts: (1) Campbell and
Batson had been smoking crack, and Batson said she was going to get more; (2)
Batson smoked the crack out of a pipe; (3) Batson was sitting next to Campbell
when she smoked the drug; (4) Campbell said the drug was crack cocaine; and (5)
Campbell was a regular user of crack cocaine.

The jury would have been justified
in inferring that Campbell, who was familiar with the drug, knew what it
was. Campbell testified the drug
defendant sold Batson, and that he observed Batson put into the pipe and smoke,
was crack cocaine, and there was evidence in the record to indicate Campbell
would have recognized the drug. There is
no evidence that Batson complained that the drug she was smoking was not crack
cocaine, or that she acted as if it was not crack cocaine while or after she
smoked it. Defendant demanded that
Campbell pay him for the crack cocaine.
This was sufficient evidence to support the jury’s verdict.

III

Eyewitness Identification Instruction

The trial court instructed the jury
pursuant to ADDIN
BA xc <@trt> xl 15 s BRKTNH000021 l "CALCRIM No. 315"
CALCRIM
No. 315 on the evaluation of eyewitness identification
testimony. One of the circumstances the
jury was directed to consider was how certain the witness was when making the
identification. Defendant contends this
part of the instruction violated his state and federal constitutional right of
due process because “research has shown that the certainty with which the witness
makes the identification has little correlation with the accuracy of that
identification.”

Defendant neither objected to the
instruction, nor requested that the certainty language be removed from the
instruction. Therefore, the claim is
forfeited. ( ADDIN BA xc <@cs> xl 53 s BRKTNH000022
xhfl Rep xpl 1 l "People v. Richardson (2008)43
Cal.4th 959, 1022-1023" >People v. Richardson (2008) 43 Cal.4th
959, 1022-1023.) We would
reject the claim, even if it were not forfeited.

Defendant acknowledges that in name="_BA_Cite_107"> ADDIN
BA xc <@cs> xl 50 s BRKTNH000023 xhfl Rep l ">People v. Johnson (1992)3 Cal.4th 1183,
1231-1232" >People v. Johnson (1992) 3 Cal.4th 1183,
1231‑1232, the California Supreme Court approved the standard
eyewitness identification instruction, which included a consideration of the
witness’s certainty, but argues the court did not consider the due process
implications he now raises. Instead,
defendant relies on four out-of-state cases that have either rejected jury instructions
on the certainty factor, or required that if such an instruction is given, a
cautionary instruction should also be given.
( ADDIN BA xc <@cs> xl 51 s
BRKTNH000024 xhfl Rep xpl 1 l "Brodes v.
State (2005)279 Ga. 435 [614 S.E.2d 766]" >Brodes v. State (2005) 279 Ga. 435 [614
S.E.2d 766]; ADDIN
BA xc <@cs> xl 62 s BRKTNH000025 xhfl Rep xpl 1 l ">Commonwealth v. Santoli (1997)424 Mass. 837 [680
N.E.2d 1116]" >Commonwealth v. Santoli (1997) 424 Mass.
837 [680 N.E.2d 1116]; ADDIN
BA xc <@cs> xl 40 s BRKTNH000026 xhfl Rep xpl 1 l ">State v. Guzman (Utah 2006)133 P.3d 363" >State v. Guzman (Utah 2006) 133 P.3d 363;
ADDIN
BA xc <@cs> xl 38 s BRKTNH000027 xhfl Rep xpl 1 l ">State v. Long (Utah 1986)721 P.2d 483" >State v. Long (Utah 1986) 721 P.2d 483.)

As noted, ADDIN
BA xc <@$cs> xl 52 s BRKTNH000023 xhfl Rep People v. Johnson, supra, 3 Cal.4th at pp. 1231-1232,
approved the standard instruction on eyewitness identification, which included
the certainty factor. The court found no
error in the instruction despite the fact that an expert defense witness had
testified that a witness’s confidence in an identification is not positively
correlated with the accuracy of the identification. ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id.
at p. 1231.)

Also in ADDIN
BA xc <@cs> xl 41 s BRKTNH000028 xhfl Rep l ">People v. Arias (1996)13 Cal.4th 92, 168" >People v. Arias (1996) 13 Cal.4th 92,
168, the Supreme Court stated that the level of certainty displayed
by the witness is among the factors to be considered in evaluating whether the
eyewitness testimony should be suppressed.

In ADDIN
BA xc <@cs> xl 41 s BRKTNH000029 xhfl Rep l ">People v. Ward (2005)36 Cal.4th 186, 213" >People v. Ward (2005) 36 Cal.4th 186,
213, the Supreme Court held that the trial court had no sua sponte
duty to modify the eyewitness identification instruction to indicate that the
witness’s certainty does not necessarily make the identification accurate.

In ADDIN
BA xc <@cs> xl 38 s BRKTNH000030 xhfl Rep l ">People v. Wright (1988)45 Cal.3d 1126"
>People v. Wright (1988) 45 Cal.3d 1126,
the Supreme Court held that a proper eyewitness identification
instruction should list “in a neutral manner, the relevant factors supported by
the evidence. [¶] The instruction should not
take a position as to the impact of
each of the psychological factors listed.”
(
ADDIN BA xc <@$id> xl 14 s ID xhfl Rep xpl 1 Id. at
p. 1141.)

In this case, the instruction was
posed in a neutral manner. The jury was
instructed: “In evaluating
identification testimony, consider the following questions: [¶] . . .
[¶] How certain was the witness when he or she made an identification?” The jury was not told that the identification
was more likely to be accurate if the witness was certain.

We conclude that the above
California authority indicates approval of the standard instruction given. There was no error in giving the jury a
neutral instruction that listed eyewitness certainty as a factor to be
considered in determining the accuracy of the identification.

IV

Ineffective Assistance of Counsel

Defendant claims his trial counsel
rendered ineffective assistance in several respects.

Defendant has the burden of proving
by a preponderance of the evidence that he is
entitled to relief on an ineffective assistance claim. ( ADDIN BA xc <@cs> xl 43 s
BRKTNH000031 xhfl Rep xpl 1 l "People v.
Ledesma (1987)43 Cal.3d 171, 218" >People v. Ledesma (1987) 43 Cal.3d 171,
218 (
ADDIN BA xc <@$cs> xl 7 s BRKTNH000031 xpl 2 Ledesma).) Defendant must show: (1) that “ ‘ “counsel’s performance
was ‘deficient’ because his ‘representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.’
[Citation.]” ’ ” and (2) that prejudice flowed from counsel’s
deficient performance. (name="_BA_Cite_117"> ADDIN BA xc <@cs> xl 42 s
BRKTNH000032 xhfl Rep xpl 1 l "People v.
Avena (1996)13 Cal.4th 394, 418" >People v. Avena (1996) 13 Cal.4th 394,
418 ( ADDIN BA xc <@$cs> xl 5 s
BRKTNH000032 xpl 2 Avena).) Prejudice is
shown if it is reasonably probable that that the result would have been
different had counsel’s performance not been deficient. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

A. Failure to
Retain Eyewitness Expert

Defendant argues his trial counsel
was ineffective because he did not retain an eyewitness identification
expert. He argues such an expert was
necessary to help the jury understand how Campbell’s stress and head wound
impaired his memory. He also argues such
an expert was necessary to enable trial counsel to adequately cross-examine the
officer that administered the photographic lineup to Campbell, in which
Campbell identified defendant as the person who shot him. This issue was the subject of a failed motion
for new trial filed by defendant after he retained a different attorney.

At the hearing on the motion,
defendant testified that prior to his trial he told his counsel multiple times
he wanted to get an eyewitness expert.
He claimed his counsel said that an expert was not necessary because the
jury would be able to see that the victim had been high. Defendant further claimed that he had
attempted to tell the court that he wanted such an expert, but that when he
raised his hand, the court indicated he had to communicate through his
attorney.

Defendant’s trial counsel testified
at the hearing. He stated that he did
not recall multiple discussions with defendant about retaining an eyewitness
expert. Counsel stated that he had
considered retaining an expert on eyewitness identification, but did not do so
because after conferring with such an expert on a previous case, he concluded
there were more cons than pros in presenting such expert testimony. He stated that an eyewitness identification
expert could hurt a case where there was a lengthy period of contact between
the witness and the suspect, there was no cross-cultural identification, and
the suspect possessed unusual or memorable characteristics. Because of these considerations, he made a
strategic decision that it would hurt defendant’s case to hire an eyewitness
expert.

Defendant’s claim of ineffective
assistance fails because he has not shown that his counsel’s performance was deficient. In determining whether counsel’s performance
was deficient, we accord great deference to the tactical decisions of
counsel. ( ADDIN BA xc <@$cs> xl 35 s
BRKTNH000031 xhfl Rep xpl 1 >Ledesma, supra, 43 Cal.3d at p. 216;
ADDIN
BA xc <@$cs> xl 34 s BRKTNH000032 xhfl Rep xpl 1 >Avena, supra, 13 Cal.4th at p. 444.) We will not second-guess the reasonable
tactical decisions of trial counsel. (name="_BA_Cite_121"> ADDIN BA xc <@cs> xl 41 s
BRKTNH000033 xhfl Rep xpl 1 l "People v.
Kelly (1992)1 Cal.4th 495, 520" >People v. Kelly (1992) 1 Cal.4th 495,
520.) “[W]here the record
shows that counsel’s omissions resulted from an informed tactical choice within
the range of reasonable competence, the conviction must be affirmed.” ( ADDIN BA xc <@cs> xl 68 s
BRKTNH000034 xhfl Rep xpl 1 l "People v. Pope (1979)23
Cal.3d 412, 425, overruled on other grounds" >People v. Pope (1979) 23 Cal.3d 412,
425, overruled on other grounds in ADDIN
BA xc <@cs> xl 82 s BRKTNH000035 xhfl Rep xpl 1 l ">People v. Berryman (1993)6 Cal.4th 1048, 1081,
fn. 10, overruled on other grounds" >People v. Berryman (1993) 6 Cal.4th
1048, 1081, fn. 10,
overruled on other grounds in ADDIN
BA xc <@cs> xl 48 s BRKTNH000036 xhfl Rep xpl 1 l ">People v. Hill (1998)17 Cal.4th 800, 823, fn. 1" >People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1.)

Trial counsel’s decision not to call
an eyewitness identification expert was within the range of reasonable
competence. Even though the eyewitness
victim was under the influence at the time of his interaction with defendant
and was under the stress of the situation during part of that interaction, the
contact was prolonged and there was no cross-racial identification. Trial counsel’s decision not to retain an
eyewitness identification expert was justified.

We review the trial court’s ruling
on the new trial motion for abuse of discretion. ( ADDIN
BA xc <@cs> xl 50 s BRKTNH000037 xhfl Rep xpl 1 l ">People v. Gonzales (2011)199 Cal.App.4th 219, 237"
>People v. Coffman and Marlow (2004) 34
Cal.4th 1, 127.) The trial court applies
the same standard we apply when determining whether a defendant has shown that
he received ineffective assistance of counsel.
( ADDIN BA xc <@cs> xl 52 s BRKTNH000038
xhfl Rep xpl 1 l "People v. Andrade (2000)79
Cal.App.4th 651, 659-660" >People v. Andrade (2000) 79 Cal.App.4th
651, 659-660.) For the same
reasons we have articulated, the trial court did not err in denying the motion
for new trial.

B. Failure to Object to the Admission of Evidence

Defendant argues he received
ineffective assistance of counsel because his trial counsel failed to object to
several items of evidence. Because
defendant did not raise these issues in his motion for new trial, there is no
indication in the record as to why trial counsel failed to raise an objection
to the evidence. Accordingly, we must
reject the claim of ineffective assistance on appeal “ ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.’”
( ADDIN BA xc <@cs> xl 42 s
BRKTNH000039 xhfl Rep xpl 1 l "People v.
Wilson (1992)3 Cal.4th 926, 936" >People v. Wilson (1992) 3 Cal.4th 926,
936.) Additionally, “[t]he
decision whether to object to the admission of evidence is ‘inherently
tactical,’ and a failure to object will rarely reflect deficient performance by
counsel.” ( ADDIN BA xc <@cs> xl 48 s
BRKTNH000040 xhfl Rep xpl 1 l "People v.
Castaneda (2011)51 Cal.4th 1292, 1335" >People v. Castaneda (2011) 51
Cal.4th 1292, 1335.)

The cases cited by defendant are not
on point because they relate to the sufficiency or admissibility of evidence,
rather than to the ineffectiveness of counsel in failing to object to the
evidence. Because there is no evidence
in the record as to why defense counsel failed to object to the evidence, the
only question we must resolve is whether there could be a satisfactory
explanation for counsel’s failure to object.

1.
Evidence from Apartment 231

Defendant argues his trial counsel
was ineffective because he failed to object on relevance grounds to the items
recovered when officers searched apartment 231 incident to defendant’s arrest
there. Officers found three grams of marijuana
packaged for sale, a small gram scale, a notebook which had notations that
appeared to be buy-owes, $866 in cash, and some .38-caliber bullets. The items were found in the bedroom/bathroom
area of the apartment.

Detective Robert Faine testified that
officers searched apartment 231 because they had information that defendant was
staying there. When the officers knocked
on the door of apartment 231, the door was opened by a woman named Nicole
Tyler, and defendant was standing at the back of the living room hallway near
the bedroom. Defendant was arrested in
the bedroom. There were four people in
the apartment at the time of the arrest.
Defendant was not the lessee of the apartment.

Defendant argues there was no
evidence establishing that he lived in apartment 231, or had actual or
constructive possession of the items found there. He argues the items had no relevance unless
they belonged to him, and his trial counsel should have objected to the
evidence on that ground. He also argues
his counsel should have objected to Faine’s statement that he heard defendant
was staying in apartment 231 on hearsay grounds.

Defendant relies heavily on name="_BA_Cite_129"> ADDIN
BA xc <@cs> xl 43 s BRKTNH000041 xhfl Rep l ">People v. Johnson (1984)158 Cal.App.3d 850"
>People v. Johnson (1984) 158 Cal.App.3d
850, for the proposition that the evidence found in apartment 231
was irrelevant because there was no showing the evidence belonged to him. In that case, the defendant was convicted of
possessing phencyclidine (PCP) for sale.
(
ADDIN BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Id. at p. 852.) The
defendant and several other people were discovered in a house during a police
raid. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) The defendant and another person were in the
kitchen, and police discovered a bottle of PCP in a hole in the ceiling with
defendant’s thumbprint. ( ADDIN BA xc <@$id> xl 17 s ID
xhfl Rep xpl 1 Id.
at p. 852-853.) This being the sole
evidence of possession, the court held it was insufficient to support a
conviction. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 856.) However, the court did not
hold that the evidence was inadmissible.

Here, the possession conviction
related to the cocaine base defendant sold to Batson on the day of the
shooting. Whether defendant had
sufficient dominion and control over the items in apartment 231 to possess them
was not at issue. Instead, defendant’s presence at the particular location in the
apartment near the room where several items indicative of drug sales were in
plain view, had some tendency in reason to prove he was involved in the sale of
drugs. This in turn had some tendency in
reason to prove he was selling cocaine base on the day of the shooting. Evidence is relevant if it has “any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (name="_BA_Cite_131"> ADDIN BA xc <@st> xl 17 s
BRKTNH000042 xpl 1 l "Evid. Code, § 210" Evid.
Code, § 210.) An objection
based on relevance would not have been justified, and defense counsel was not
deficient in failing to make such an objection.href="#_ftn2"
name="_ftnref2" title="">[2]

As to the hearsay statement that
defendant was “staying” at apartment 231, we cannot say on this record that
trial counsel was deficient in failing to object. Had counsel made the objection, the
prosecution may well have introduced evidence from the out‑of‑court
declarant, whose testimony may have been more harmful to defendant. Such an objection also would not have
prevented the detective from describing the arrest and introducing the evidence
discovered in the search, and may have drawn undue attention to the detective’s
brief mention that he heard defendant was staying at the apartment.

2. Evidence
from Apartment 222

Police executed a search warrant on
apartment 222. Defendant’s mother
answered the door. Three or four people
lived in the apartment. In that
apartment, officers found a repair receipt in the name of defendant and a mini
scale. Defendant argues this evidence
should have been excluded as irrelevant.
He argues there was no evidence to show he lived in the apartment with
his mother.

As with the items found in apartment
231, the issue was not whether there was sufficient evidence to show the items
found there were defendant’s. Instead,
defendant had ties to this apartment, as evidenced by the fact that his mother
was found in the apartment, as was a receipt with his name on it. Also in the apartment was a scale associated
with drug sales. The evidence was
relevant, both for its tendency to show he was engaged in drug sales, and to
show defendant’s connection to the apartment building where the shooting took
place. The items were relevant to prove
the identity of the perpetrator. Defense
counsel was not required to make a baseless objection.

3. Evidence on
Thomas’s Cell Phone

Officers took a cell phone from
Thomas. The name “Brian” was in the
telephone’s address book. The number
that was listed in connection with that name was a number the Stockton Police
Department had listed as previously belonging to defendant. Defendant argues his trial counsel was
ineffective because he failed to object that there was no evidence Thomas owned
the cell phone, or that defendant was the “Brian” listed in its address
book. He argues the evidence was
irrelevant.

Any such objection would almost
certainly have been overruled. The fact
that Thomas was in possession of the phone was some evidence that the phone
belonged to Thomas. Likewise, the police
department showed the number listed in the phone as belonging to defendant on a
prior date, thus evidencing a connection between Thomas and defendant. The evidence was relevant to the identity of
defendant as the perpetrator. Defense
counsel was not deficient for failing to object on relevance grounds.

Defendant also argues his trial
counsel should have objected to the admission of the photographs in Thomas’s
cell phone on the ground of lack of authentication. He is wrong.
Detective Faine testified he viewed the photos on the phone and that the
photos introduced into evidence were the pictures printed from the phone. Unlike the cases cited by defendant, there
was no issue of whether the photographs on the phone were fake. The issue was whether the photographs shown
to the jury were, in fact, found on Thomas’s cell phone. Detective Faine’s testimony was sufficient to
verify this.

For the same reasons expressed
above, defense counsel was not ineffective for failing to request that the
evidence be excluded under ADDIN
BA xc <@st> xl 25 s BRKTNH000043 l "Evidence Code section 352"
Evidence
Code section 352. Defense
counsel reasonably could have concluded that such a motion would have been
unsuccessful.

C. Failure to Subpoena Witnesses

Defendant asserts his trial counsel
was ineffective because he did not subpoena Devazia Turner and Turner’s mother,
Penny Scott, for trial. One of the guns
used in the shooting was found in Turner’s possession in Sacramento. When Turner was apprehended with the gun, he
was in the company of Kenneth Jefferson.
In one photo lineup, Campbell said that Jefferson looked like one of the
men who had attacked him. Scott
originally claimed Turner told her that he got the gun from Jefferson, although
both Turner and Scott later said the gun came from someone at a Sacramento
light rail station.

At the new trial motion, defendant’s
trial counsel testified that he hired an investigator to look into the
gun. He testified that it was his
opinion that pursuing the investigation into the gun further might hurt defendant’s
case. He stated that the investigator
interviewed both Scott and Turner, and that Turner claimed someone gave him the
gun at the light rail station in Sacramento.
Scott backed up this story.

Defense counsel stated he saw it as
a dead end issue at that point. He
testified that based upon the investigation he felt the circumstances of how
the gun was found would only hurt defendant’s case. Counsel’s decision not to subpoena these
witnesses was within the range of reasonable competence, and does not
constitute ineffective assistance of counsel.

Moreover, defendant has failed to
establish prejudice. There is no
evidence that Turner would have testified, since to do so would have implicated
his ADDIN
BA xc <@con> xl 15 s BRKTNH000051 l "Fifth Amendment"
Fifth
Amendment right against self-incrimination. Turner’s statements to his mother could not
have come in as inconsistent statements without Turner testifying.

D. Failure to Supplement ADDIN
BA xc <@$trt> xl 15 s BRKTNH000021 CALCRIM
No. 315

Defendant argues his trial counsel
provided ineffective assistance because he did not request that the instruction
on eyewitness identification be modified to instruct the jury to consider the
effect of Campbell’s brain damage and use of drugs and alcohol on his ability
to correctly identify the perpetrator.

We reject this argument. ADDIN
BA xc <@$trt> xl 15 s BRKTNH000021 CALCRIM No. 315 contains numerous guidelines
for the evaluation of eyewitness identification testimony. Among them is the admonition to consider “any
other [circumstance] affecting the witness’s ability to make an accurate
identification.” The jury heard
testimony regarding Campbell’s drug and alcohol use, and his brain injury from
the bullet inflicted by defendant. The
instruction was adequate to instruct the jury that it could consider this
evidence in evaluating the accuracy of the identification. For the same reason, we reject defendant’s
claim that the trial court erred in denying his motion for new trial on this
basis.

As we find no error, we reject
defendant’s argument that the judgment must be reversed because of multiple
errors.

DISPOSITION

The judgment is affirmed.







BLEASE , Acting
P. J.





We concur:





ROBIE , J.





MURRAY , J.name="_BA_TOA_SelectionPoint">