In re Rene L.

Filed 4/25/07 In re Rene L. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Commissioner. Affirmed.

ORIGINAL PROCEEDINGS; petition, supplemental petition and second supplemental petition for writ of habeas corpus. Petitions denied.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

Rene L. challenges a juvenile court order sustaining a Welfare and Institutions Code section 602 petition alleging he committed a lewd act upon a child under the age of 14 years. On appeal and in his petition, supplemental petition and second supplemental petition for writ of habeas corpus, Rene contends his trial counsel rendered ineffective assistance by, among other things, failing to call an eyewitness identification expert, failing to effectively cross-examine the victim and present argument to the juvenile court on the issue of the victims identification of Rene as the perpetrator of the charged offenses, and failing to bring a motion to exclude evidence concerning the victims identification of Rene in a friends yearbook. We affirm the order and deny the petitions.

FACTS AND PROCEEDINGS BELOW

I. THE PETITION AND PROBATION REPORT

A Welfare and Institutions Code section 602 petition alleged, on July 20, 2001, 17-year-old Rene L. committed a lewd act upon a child under the age of 14 years,[1]assault with intent to commit rape, sodomy or oral copulation[2]and false imprisonment by violence.[3] According to the probation officers August 14, 2001 report, which was based on a police report and an August 6 interview with the victim, the incident occurred at about 10:15 a.m. when the 12-year-old female victim was walking home from school.

The probation officers report states the victim spotted and walked past the perpetrator of the offenses, a young man on a bicycle who was stopped at a corner. As she continued walking, the victim heard a bicycle approach her from behind. She stopped walking to let the bicycle pass. The suspect got off the bicycle, grabbed her and wrapped his arms around her torso. Despite her efforts to free herself, the suspect pulled her to the ground, lifted up her skirt and began touching her legs. The victim landed face-down on the ground, but managed to turn herself over so she was facing up. The suspect got on top of her, straddling her body. He forcibly kissed her mouth and neck as he placed one of his hands underneath her underwear and grabbed her buttocks. The suspect tried to touch the victims breasts and vagina, but she prevented him from doing so by crossing her arms. After a three-to-four-minute struggle, a police car drove by, startling the suspect.[4] He got up and rode away on his bicycle. The victim ran home and reported the incident. Later that day, she was interviewed by law enforcement and had a medical examination.

The probation officer also reported: Victim states she had no prior relationship with the minor [suspect] but had seen him on several occasions (almost daily) in the past few months pass by her home riding a bicycle. On every occasion the minor would stop, stare at her and laugh without ever saying anything. Even prior to the assault, she was always scared of minor because of his appearance (long black hair, dark features, bloodshot eyes) and because of the constant stares he gave her, which made her uncomfortable.

II. THE ADJUDICATION AND DISPOSITION HEARINGS

The victim testified against Rene at the August 15, 2001 adjudication hearing. On direct examination, she explained she left school in the morning on the date of the incident to return home because she had forgotten a paper she needed for school. At the hearing, the victim pointed to Rene and identified him as the young man she saw riding a bicycle on the date of the incident. She also identified Rene as someone she had seen ride by her house on a bicycle and stare at her on approximately five other occasions before the incident. The victim said Rene would always smile at her as he rode by. She described his face as scary. The victim did not know Rene personally. When she first saw Rene on July 20, 2001, the date of the incident, she recognized him as the person who had ridden by her house and stared at her on prior occasions. The victims testimony about the incident was consistent with the information in the probation officers report except, at the adjudication hearing, the victim said Rene grabbed her by her shoulders (not around the torso) and the whole incident lasted only about 15 seconds (not three or four minutes).

On cross-examination, Renes counsel questioned the victim about exactly where she was and what direction she was traveling at the time the incident occurred, and what she told the police about the manner in which the incident occurred (i.e., whether the suspect grabbed her by her shoulders or around her torso, etc.). The victim denied telling the police the suspect held her on the ground for three or four minutes. Counsel asked the victim to describe the bicycle the suspect was riding. She stated it was gray or silver and black. She had seen Rene riding this particular bicycle on prior occasions. Counsel asked her if she had previously told anyone, including the police, the bicycle was all black. She said, [n]o.

Also on cross-examination, the victim testified a school principal called her mother and requested she bring the victim to a local high school to meet with a detective four days after the incident. While at the school, the detective showed her Rene, who was in custody and wearing handcuffs, and asked her if he was the person who had attacked her. The victim was inside the school and Rene was standing outside about eight feet away from her. The detective told her the fact the suspect was wearing handcuffs did not mean he was the person who had attacked her. The detective did not show the victim any other potential suspects. The victim positively identified Rene as the person who had attacked her. During cross-examination, the victim explained she had seen a photo of Rene at some point before she made this identification. Her friends brother had shown her a yearbook from three years before (1998) which included a picture of Rene from when he was in the eighth grade.

On redirect, the victim testified in more detail about how she came to see Renes photo in the yearbook. While at her friends house, she gave a description of the person who had attacked her. Her friends brother said he believed he had seen someone who matched that description and thought the persons picture might be in the yearbook. He handed the yearbook to the victim and she looked through it and found Renes picture. The victim said her friends brother did not point out Renes picture. He let [her] choose the photo herself. Renes counsel objected on best evidence grounds to the prosecutors introduction of a copy of the yearbook photo. The juvenile court overruled the objection.

Rene testified at the adjudication hearing. He denied assaulting the victim and said he had never even seen her before that day in court. He also said he did not own a bicycle. He had borrowed a bicycle previously from his friend, but claimed it was stolen before the date of the incident. That bike was all chrome or silver. No part of it was painted black.

Rene presented an alibi defense. According to his testimony, he went to a concert the night before the incident and got home late. The following morning, his father tried to wake him up for school at about 7:00 a.m., but he did not respond. When his father tried again at 7:30 a.m., Rene said he did not feel well.[5] Rene stated he did not wake up until about 11:00 or 11:30 a.m. on the date the incident occurred. Renes father, brother, and a friend who slept at Renes home the night before the incident all testified Rene woke up late and did not leave the house before 11:30 a.m. on the morning of the incident. Another friend testified he went to the concert with Rene and they did not get back to Renes house until 1:00 or 2:00 a.m. The next day, Rene came over to this friends house about 1:00 p.m. to go swimming in the friends pool. In his brief closing argument, Renes counsel focused on this alibi defense and also asserted there was no credible evidence the victim was attacked. Counsel did not present any argument about the credibility of the victims identification of Rene as the perpetrator of the charged offenses.

The juvenile court sustained the petition on count 1 (lewd act on a child under 14 years of age) and dismissed the other charges. In making its ruling, the juvenile court made the following comments: Well before me is a case of the issue of identity. I think that the fact that this incident occurred, it is a very serious offense. I think there is no question it did occur. Issue is whether or not this is the minor that did it. [] Her testimony before me was very truthful, very honest, and very direct. She had no doubts this was the minor. She picked the minor not out of a lineup, out of a yearbook that was given to her earlier. She has seen the minor before. So she had some prior knowledge of him. [] And I have great doubts with regard to the alibi witnesses and their timing. They werent even up when this could have occurred.

At the August 21, 2001 disposition hearing, Renes counsel argued his client was entitled to a new trial because the prosecution did not turn over DNA evidence gathered during the victims medical examination. The prosecutor informed the juvenile court her office had turned over to the defense a six-page form filled out by the nurse who prepared the sexual assault kit on the victim. Renes counsel stated he had not received the results of any DNA testing. The prosecutor noted the defense did not seek a continuance so it could get DNA testing done before the adjudication hearing. The juvenile court rejected the request for a new trial, declared Rene to be a ward of the court, and ordered him suitably placed in a closed facility for a period not to exceed eight years and four months.

III. THE APPEAL AND INITIAL PETITION FOR WRIT OF HABEAS CORPUS

Renes father claims he told Renes trial counsel Rene wanted to appeal from the orders sustaining the Welfare and Institutions Code section 602 petition and ordering him suitably placed. Renes counsel did not file a notice of appeal. Renes father searched for an attorney who would represent Rene on appeal. In November 2001, a public defender helped Renes father fill out a form notice of appeal on Renes behalf. Renes father submitted the notice of appeal to the juvenile court, but it was later rejected as untimely. In August 2004, the California Appellate Project filed in this court an application for relief from default based on trial counsels failure to file a notice of appeal. This court granted the application, and ordered the juvenile court to accept as timely the notice of appeal submitted on Renes behalf on November 12, 2001.

In his opening appellate brief, Rene asserted his trial counsel rendered ineffective assistance by failing to investigate biological evidence taken from the victim. Rene argued this evidence was critical to [his] mistaken identity defense because it could have conclusively proved the identity of the perpetrator through DNA testing. Rene also filed in this court a petition for writ of habeas corpus in which he made the same claim. At the time Rene filed his appellate brief and initial habeas petition, Renes appellate counsel had not yet received the results from the pending DNA testing.

IV. THE SUPPLEMENTAL PETITION FOR WRIT OF HABEAS CORPUS

Rene later sought leave from this court for the appointment of an eyewitness identification expert and permission to file a supplemental petition for writ of habeas corpus. This court granted Renes motion. Rene filed his supplemental petition and he attached the results from the DNA testing. His appellate counsel conceded, while the results did not corroborate the victims identification, the DNA testing did not clear [Rene] of the charges either.

Like his appeal and initial petition, Renes supplemental petition for writ of habeas corpus was based on claims of ineffective assistance of counsel. This time, Rene contended his trial counsel rendered ineffective assistance by failing to call (or consult with) an eyewitness identification expert. In support of his supplemental petition, Rene argued:

[This] case practically screamed for the need of an eyewitness identification expert. Not only was there no corroboration of the identification, [the victim]s initial and most important identification of [Rene]s small school photo was fraught with factors indicating that it was not reliable. Because no other evidence tied [Rene] to this crime, the accuracy of this identification was crucial. Neither the Court, nor the parties spent any effort testing the reliability of [the victim]s initial identification of [Rene]. It bothered no one that her identification of [Rene] was done without law enforcement presence in accordance with standardized procedures; the court and the parties had no qualms about the fact that [the victim] picked [Rene]s photo out with the help and possible influence of two other unnamed minors who were unavailable for cross-examination.

Rene attached to his supplemental petition a declaration from the eyewitness identification expert who was appointed on appeal, Robert Shomer, Ph.D. Dr. Shomer highlighted several factors he believed the defense should have asked the juvenile court to consider about the victims identification of Rene as the perpetrator of the charged offenses, including the impact of a stressful encounter on a subsequent identification. Dr. Shomer pointed out the report from the victims initial interview with law enforcement after the incident does not indicate the victim told officers she had seen the suspect before on multiple occasions, a fact she later reported to police after she saw Renes photo in her friends brothers yearbook. Dr. Shomer asserted: It is entirely discrepant to later say that you have seen someone a number of times who you claim was your assailant but to fail to mention those sightings at the time when you first reported the attack, and were being questioned about the assailant. Dr. Shomer also questioned the reliability of the victims identification of Renes photo in the yearbook given the extremely suggestive circumstances under which that identification was made. Dr. Shomer also stated the show-up at the school where the victim identified Rene and the in-court identification merely demonstrated the victim was going to remain consistent with her assumption Rene was the person who attacked her. He added, The fact that she did remain consistent, however, has absolutely nothing to do with whether her initial assumption that he was the suspect was correct.

In the supplemental petition for writ of habeas corpus, Rene also contended his trial counsel rendered ineffective assistance by failing to bring a motion to exclude evidence concerning the victims identification of Rene in her friends brothers yearbook. Rene argued the procedure used was unduly suggestive and the identification was unreliable under the totality of the circumstances for the reasons Dr. Shomer highlighted in his declaration.

Renes appellate counsel attached to her declaration in support of the supplemental petition two letters she sent to Renes trial counsel asking whether he had consulted an eyewitness identification expert and why he did not challenge the victims identification of Rene in her friends brothers yearbook. Trial counsel did not respond to either letter.

At this courts request, the Attorney General submitted an informal response to Renes supplemental petition for writ of habeas corpus, and Rene submitted a reply.

V. THE SECOND SUPPLEMENTAL PETITION FOR WRIT OF HABEAS CORPUS

After this court read and considered Renes supplemental petition, the Attorney Generals informal response, Renes reply and the record on appeal, the court on its own motion granted Rene leave to file a second supplemental petition for writ of habeas corpus addressing whether trial counsel rendered ineffective assistance by failing to effectively cross-examine the victim and present argument to the juvenile court on the issue of the victims identification of Rene as the perpetrator of the charged offenses.

In his second supplemental petition, Rene argued the fact his trial counsel presented an alibi defense did not excuse him from failing to present other, much stronger exculpatory evidence. Rene faulted trial counsel for failing to elicit from [the victim] in his cross-examination of her that in her initial statement to the police, she did not tell the officers that she was familiar with the perpetrator, that she had seen him five times prior to the attack and that the last time she saw the suspect was the Monday before the attack which took place on a Friday.[6]

Rene also criticized his trial counsel for failing to present the following arguments to the juvenile court: (1) [the victim]s identification of [Rene] and description of [Rene] came only after her meeting with her friends four days after the attack; (2) [the victim]s most crucial identification of [Rene] at this meeting with her friends was the result of an extremely suggestive identification procedure, not administered by law enforcement; (3) if [Rene] had been the actual perpetrator, since [the victim] knew of [Rene], she would have naturally told the officers at the outset in her initial interview with them on July 20th that [Rene] was the perpetrator, and; (4) given all the above, [Rene] was misidentified as a result on an extremely suggestive identification procedure in violation of his right to due process.

At this courts request, the Attorney General submitted an informal response to the second supplemental petition for writ of habeas corpus, and Rene submitted a reply. Thereafter, this court ordered the Secretary of the Department of Corrections and Rehabilitation to show cause why it should not be compelled to grant the relief prayed for in the supplemental petition and second supplemental petition for writ of habeas corpus.

In connection with its return, the Attorney General submitted a declaration from the victim made more than five and a half years after the incident. The victim stated, during her initial interview with law enforcement on the date of the incident, she was in shock and was nervous, crying, scared, and could not really talk. She also stated: On the date of the incident, I remember describing the perpetrator as having long hair with a ponytail, facial hair, dark skin, as being skinny, and as being 16 to 18 years old. I am sure that I did not say he was in his 20s.^[[7]] I remember being asked if I knew who the perpetrator was, and I said no. I also remember the female deputy asking if I had ever seen him before, and I am pretty sure that I said yes, because I had seen him before.[8] The victims declaration concluded: I remain positive that the defendant, Rene L., was the person who assaulted me.

The Attorney General also submitted a declaration from Renes trial counsel, John Ortega. Mr. Ortega stated he did not consider hiring an eyewitness identification expert. Nor did he consider moving to exclude the victims identifications of Rene because he believed the identifications were proper. Mr. Ortega also stated: I do not recall considering whether to cross-examine the complaining witness further regarding her initial statement to law enforcement. However, I do recall believing that she was a very convincing witness, and I sensed during cross-examination that the judge was angry with me. So I decided to end my cross-examination of her, as it appeared to be making the case against [Rene] worse. I believed that my best course of action was to put on the alibi witnesses, who I thought were credible.

In the return, the Attorney General disputed Renes claims of ineffective assistance of counsel. The Attorney General argued an eyewitness identification expert was not necessary in this bench trial and, in any event, several of the assumptions on which Dr. Shomer based his expert opinion are not supported by the evidence (i.e., the victim did provide a description of the suspect during her initial interview with the sheriffs deputies, and the victim believed she told the deputies she had seen the suspect before). The Attorney General also argued there was no basis for a motion to exclude the victims identification of Rene in her friends brothers yearbook because no law enforcement personnel were involved, and therefore, Renes complaints about the way that identification was handled go to the weight and not the admissibility of the evidence. The Attorney General also asserted Renes claim of undue suggestion by the victims friends brother was speculative. Finally, the Attorney General stated trial counsel was not ineffective in failing to cross-examine the victim and present arguments to the juvenile court about the credibility of the victims identifications of Rene because none of those arguments would have changed the outcome of the case.

In connection with his traverse, Rene presented evidence demonstrating he was released from the California Youth Authority on July 17, 2005, and registered as a sex offender three days later.[9]

DISCUSSION

The legal principles relevant to [Rene]s claim[s] are well settled. To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the petitioner. [Citations] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] [Citation].[10]

Our review of defense counsels performance is a deferential one. [A] court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance . . . .[11] A petitioner must overcome the presumption counsels action or inaction was sound trial strategy. [W]here the record shows that counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.[12] Where there simply could be no satisfactory explanation for the challenged action or inaction, however, we reverse the conviction.[13]

Rene concedes he cannot establish the ineffective assistance of counsel claim he made on appeal and in his initial petition for writ of habeas corpus. He cannot show it is reasonably probable the outcome of the case would have been different if his trial counsel had ensured the DNA testing was completed before the adjudication hearing. While the DNA testing did not corroborate the victims identification of Rene as the perpetrator, it did not clear Rene as a suspect either. Accordingly, we turn now to the claims Rene made in his supplemental petition and second supplemental petition for writ of habeas corpus.

Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Societys interest in the finality of criminal proceedings so demands, and due process is not thereby offended. [Citation.][14]

I. TRIAL COUNSELS FAILURE TO BRING A MOTION TO EXCLUDE THE VICTIMS IDENTIFICATION OF RENE IN THE YEARBOOK DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.

In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.[15] Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation.[16]

Rene has not cited any authority demonstrating this exclusionary rule even applies to the identification at issue here in which the state was not involved at all. As the Attorney General pointed out in its return, for a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness.[17] We are aware of no authority holding an identification should be excluded because a private citizen, not connected in any way to law enforcement, had a conversation with the victim before the identification about who the perpetrator of the crimes might be. Nor are we aware of any authority holding an identification should be excluded because a friend tried to help the victim identify her attacker.[18] We agree with the Attorney Generals assertion the circumstances of [the victim]s identification of [Rene]s photograph thus went only to the weight, not admissibility, of the evidence.

Even if the exclusionary rule could be applied to this identification, Rene has not met his burden of showing unfairness as a demonstrable reality, not just speculation.[19] According to the victims testimony, although her friends brother handed her the yearbook, he did not point to the photo of the person he believed was her attacker. The victim looked through the yearbook and found, on her own, a picture of the perpetrator of the offenses. There is no evidence indicating the victim felt compelled to select a photo from the yearbook. She testified she had seen the suspect before the date of the incident and was trying to identify him.

Furthermore, there are several factors indicating the identification was reliable under the totality of the circumstances. The victim never expressed any doubt about any of her identifications.[20] Overall, the juvenile court found the victim to be a truthful and credible witness. During her testimony at the adjudication hearing, the victim stated she described the suspect to her friend before she looked through the yearbook. In addition, based on evidence submitted with the return, we now know the victim gave a detailed description of the suspect at her initial interview with law enforcement which took place before the identification in the yearbook. Thus, despite Renes assertion to the contrary, there is no doubt the victim had a picture of the suspect in her mind before she looked through the yearbook. Moreover, based on her testimony, we believe the victim had ample time to view her attacker during the incident. The identification of Renes photo in the yearbook occurred, at the most, four days after the incident.

Based on the foregoing, we conclude a motion to exclude the victims identification of Rene in the yearbook would have lacked merit and been unsuccessful. Accordingly, we cannot find trial counsel rendered ineffective assistance in failing to bring such a motion.

II. RENE CANNOT PREVAIL ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED ON TRIAL COUNSELS FAILURE TO CROSS-EXAMINE THE VICTIM AND PRESENT ARGUMENT TO THE COURT ABOUT THE CREDIBILITY OF THE VICTIMS IDENTIFICATIONS.

Although we are puzzled by the fact trial counsel spent so much time during cross-examination trying to pin down the victim on which way she was walking and where exactly she was located at the time of the incident, and not cross-examining her further about her identifications, we cannot find there is a reasonable probability this had any effect on the outcome of the case.

In his second supplemental petition for writ of habeas corpus, Rene criticized his trial counsel for failing to elicit on cross-examination that the victim did not give law enforcement any description of the suspect before she got together with her friends and looked through the yearbook. As set forth above, Rene (and this court) have since learned the victim gave a very detailed description of the suspect during her first interview with law enforcement on the date of the incident. Although this description is not reflected in the police report, it was memorialized in a deputy sheriffs notes from her investigation.

Rene also faulted his counsel for failing to cross-examine the victim about the changes to her description of the suspects bicycle. The deputy sheriff who took notes during the initial interview noted the victim said the bicycle was black. Four days later -- and after the victim spoke with her friends about who the perpetrator might be -- the victim told officers the bicycle was silver with black stripes. As noted above, during his cross-examination at the adjudication hearing, Renes trial counsel asked the victim if she ever told anyone, including the police, the bicycle was black. The victim denied giving such a description of the bicycle.

Renes appellate counsel and Dr. Shomer have emphasized the fact the police report from the victims initial interview with law enforcement does not state the victim told officers she was familiar with the suspect and had seen him riding his bicycle past her home on numerous prior occasions. We cannot say there is a reasonable probability the outcome of this case would have been different had this information been pointed out to the juvenile court through cross-examination or argument.

During the initial interview, the victim told officers she did not know the suspect. By all accounts, this was true. On the date of the incident, the victim did not know the suspects identity and could not identify him as Rene L. None of the officers recalls asking the victim whether she had seen the suspect before. In her recently-prepared declaration, the victim claims she told officers she had seen the suspect before, but they did not record this information in their notes or include it in the police report. Even if the victim did not tell officers she had seen the suspect before, we do not believe this necessarily would have caused the juvenile court to doubt the credibility of her subsequent statement to police and her testimony at the adjudication hearing. The victim has explained, at the time of the initial interview, she was still in shock, having just been the victim of a violent sexual assault. She was scared, she was crying, and she was having a difficult time speaking. She also was a 12-year-old little girl. Under these circumstances, it would not surprise us if the victim answered the questions asked, but did not volunteer any additional information. Moreover, we are not troubled by any minor discrepancies between her initial description of the suspect and her subsequent identification of Rene, such as whether the suspect was 16 or 20 and whether he wore a beard or a goatee.

Again, we return to the fact the juvenile court found the victim to be a truthful and credible witness, who remained consistent in her assertion Rene was the person who attacked her. Based on the record before us, we do not believe there is any further cross-examination trial counsel could have conducted or argument he could have presented which would have made the juvenile court doubt the credibility of her identifications of Rene as the perpetrator of the charged offenses. Accordingly, this claim of ineffective assistance of counsel also must fail.

III. RENE CANNOT PREVAIL ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED ON TRIAL COUNSELS FAILURE TO CALL OR CONSULT WITH AN EYEWITNESS IDENTIFICATION EXPERT.

In People v. McDonald, the only case on which Rene relies in support of this claim, the California Supreme Court held: When an eyewitness identification of the defendant is a key element of the prosecutions case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.[21] Although People v. McDonald did not involve and did not address a claim of ineffective assistance of counsel, we can conceive of cases in which the failure to call an eyewitness identification expert could constitute ineffective assistance. But this is not one of them.

First and foremost, this was a bench trial, not a jury trial. In People v. McDonald, the California Supreme Court (relying on information provided by Dr. Shomer) highlighted factors which could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury.[22] As both our Supreme Court and the United States Supreme Court have recognized, The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. [Citation.][23] We are confident the juvenile court already was familiar with factors affecting the reliability of an eyewitness identification -- such as stress from a violent encounter -- and was quite capable of evaluating the credibility of the victims identifications. But even if the juvenile court could have benefited from a refresher course, it does not appear Dr. Shomers testimony would have been all that helpful in this particular case.

As the Attorney General has pointed out, some of the assumptions on which Dr. Shomer based his expert opinion turned out to be false. For example, Dr. Shomer relied heavily on the fact the victim did not provide a description of the suspect to law enforcement until after she looked through the yearbook with her friends. As it turns out, the victim provided a very detailed description of the suspect during her initial interview on the date of the incident. Although this description was included in a deputys notes, it did not make its way into the police report.

We certainly cannot say it is reasonably probable the outcome of this case would have been different if an eyewitness identification expert had highlighted for the juvenile court other factors Dr. Shomer identified in his declaration. We believe the court had the ability to evaluate the credibility of the victims testimony regarding her identification of Rene in the yearbook without any assistance from an expert. Moreover, as discussed above, we are not nearly as troubled as Rene by the fact the victim might not have immediately reported she had seen the suspect on prior occasions. We note, the fact this 12-year-old victim provided such a detailed initial description of the suspect lends credibility to her assertion she had seen the suspect before. For these reasons, we conclude trial counsels failure to call or consult with an eyewitness identification expert does not constitute ineffective assistance of counsel.

In sum, based on our review of the record in this case, and considering the totality of the circumstances, we do not believe it is reasonably probable the outcome in this case would have been different if trial counsel did any of the things (alone or in combination) Rene now wishes he had done.

DISPOSITION

The order sustaining the Welfare and Institutions Code section 602 petition is affirmed. The petition, supplemental petition and second supplemental petition for writ of habeas corpus are denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J. ZELON, J.

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[1] Penal Code section 288, subdivision (a).

[2] Penal Code section 220.

[3] Penal Code section 236.

[4] Apparently the officer(s) in the police vehicle did not witness the incident.

[5] The parties stipulated to the fact Renes probation officer noted in Renes file that Renes father called about 7:45 a.m. on July 20, 2001 to say Rene was ill and would not be going to school that day. At the time of the incident in this case, Rene was on probation in a prior case involving a sustained petition alleging vandalism.

[6] Rene also faulted trial counsel for not questioning the victim about her failure to provide a description of the perpetrator during her initial interview with law enforcement on the date of the incident. The assumption the victim did not give such a description -- an assumption Dr. Shomer relied on in attacking the reliability and validity of subsequent identifications of Rene -- turned out to be false. A declaration from a sergeant (who was a deputy at the time of the incident) with the Los Angeles County Sheriffs Department attached to the Attorney Generals return makes clear the victim did provide a description of the perpetrator during her initial July 20, 2001 interview even though that description was not included in the police report. The sergeants notes from her investigation reveal the victim gave a detailed description of the suspect during the initial interview.
Rene also asserted trial counsel failed to question the victim about the change of her description of the bicycle on cross-examination. This assertion also is false. As set forth above, at the adjudication hearing, the victim testified the suspects bicycle was gray or silver and black. According to the police report, the victim initially told officers the bicycle was black. During cross-examination, Renes trial counsel asked the victim if she ever told anyone, including the police, the suspects bicycle was all black. The victim said she never described the bicycle in that manner to anyone.

[7] According to the handwritten notes of one of the sheriffs deputies who responded to the victims home on the date of the incident, the victim described the suspect as a male Hispanic, in his 20s, five feet, six inches tall, 120 pounds, with shoulder-length, combed-back, thick black hair, a beard, brown eyes, and a medium complexion. The suspect was wearing a black shirt, had a black wristwatch on his right wrist, and was riding a black kids bike. The suspects identity was unknown.

[8] Sergeant Julia Valdes, who at the time of the incident was a deputy sheriff and one of the officers who responded to the victims home, stated in her declaration attached to the return: I have no recollection whether the victim was specifically asked if she had seen the suspect before the date of the incident. While it is possible that the victim indicated to me that she had seen the suspect before, I believe that I would have included that information in my report had she done so.
Detective Martin Rojas, who at the time of the incident also was a deputy sheriff and one of the officers who responded to the victims home, stated in his declaration attached to the return: The victim never mentioned to me that she had seen the suspect before the date of the incident. In interviewing the victim of a reported assault, I normally would have asked the victim if she knew who the perpetrator was. If the victim said no, I would assume the suspect was a stranger, and seek to obtain a physical description. I would not have then asked if the victim had seen the suspect before that date.

[9] Penal Code section 290.

[10]In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington (1984) 466 U.S. 668, 687, 694.

[11]In re Jones, supra, 13 Cal.4th at page 561.

[12]People v. Pope (1979) 23 Cal.3d 412, 425, disapproved on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, footnote 10.

[13]People v. Pope, supra, 23 Cal.3d at page 426.

[14]People v. Duvall (1995) 9 Cal.4th 464, 474.

[15]People v. Cunningham (2001) 25 Cal.4th 926, 989, citing Manson v. Brathwaite (1977) 432 U.S. 98, 104-107.

[16]People v. DeSantis (1992) 2 Cal.4th 1198, 1222.

[17]People v. Ochoa (1998) 19 Cal.4th 353, 413, italics added.

[18]People v. Boyd (1990) 222 Cal.App.3d 541, 574 (California courts have indicated in dicta that it must be police conduct which causes the procedure to be suggestive).

[19]People v. DeSantis, supra, 2 Cal.4th at page 1222.

[20] Rene only challenges the show-up at the school and the in-court identification to the extent these procedures were tainted by the selection of the yearbook photo.

[21]People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th896, 914; see also People v. Walker (1986) 185 Cal.App.3d 155, 163 (Thus if the defense expert is qualified to testify, and the key issue is a defendants identity, the mandate of McDonald prevents the trial court from excluding such testimony because the experts testimony may prejudice the prosecutions case, confuse the issues or mislead the jury).

[22]People v. McDonald, supra, 37 Cal.3d at page 377, italics added.

[23]People v. McDonald, supra, 37 Cal.3d at page 363, quoting United States v. Wade (1967) 388 U.S. 218, 228.