Filed 5/30/17 P. v. Dargen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER DARGEN,

Defendant and Appellant.
C078901

(Super. Ct. No. 14F01212)



Over the course of two jury trials, defendant Christopher Dargen was found guilty of first degree burglary (Pen. Code, § 459), assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). A jury also found true the allegations that a person other than an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)), and that defendant personally used a deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)). The trial court sentenced defendant to an aggregate term of eight years six months in prison.
On appeal, defendant contends that the photographic lineup and in-court identification violated his due process rights because the lineup was impermissibly suggestive and tainted the subsequent in-court identification. Recognizing that he may have forfeited this claim, defendant alternatively argues he received ineffective assistance of counsel. Defendant also contends that he is entitled to additional custody credit. We will modify the judgment to reflect that defendant is awarded 273 days of custody credits. In all other respects, we affirm the judgment.
I. BACKGROUND
Around 1:00 a.m. on February 17, 2014, D.O. saw a man in his apartment after he heard noises coming from a window. When D.O. took a couple of aggressive steps toward the intruder to intimidate him, the intruder pulled a knife and tried to stab D.O., causing a hole in D.O.’s shirt. In an effort to defend himself, D.O. threw a stool at the intruder and then went to the kitchen and grabbed two knives. When D.O. turned around, he saw the intruder running out the door. D.O. subsequently called 911.
Around 20 minutes later, a police officer arrived and D.O. provided a description of the intruder. D.O. described the intruder as an unshaven white male in his 30’s with short brown hair and a medium build. He said the intruder was wearing a gray hooded sweatshirt, tan khaki pants that were really dirty, and gloves with the fingers cut off. He also said the intruder was carrying a black duffel bag, and described the knife as having a four- to six-inch silver blade with a serrated edge.
When interviewed by a detective the next day, D.O. provided the same description of the intruder, but added that the intruder had a mark or scar on his right cheek. Later that day, a sketch artist met with D.O. and created a composite sketch of the intruder. Based on the sketch, a detective made contact with defendant the following day at a gas station less than half a mile from D.O.’s apartment. Defendant was wearing a dark hooded sweatshirt and carrying a backpack. He was arrested and searched. Inside the backpack was a pair of black and gray gloves that had the tops of the fingers missing. A black knife with a two-inch silver serrated blade was found in defendant’s pocket. During his conversation with defendant, the detective learned that defendant occasionally stayed at an apartment where his friend Tyler and Tyler’s brother lived. According to Tyler, defendant came to his apartment in the afternoon on February 17, 2014. Tyler said that defendant went into the bathroom, shaved his hair, took a shower, and changed his clothes. A search of Tyler’s apartment revealed a pile of wet clothes inside a bucket in the shower, which included a pair of khaki pants. When D.O. was shown the items collected from Tyler’s apartment, he said the sweatshirt and khaki pants looked like the clothes the intruder was wearing. He also said the gloves looked similar to the gloves the intruder was wearing. D.O., however, did not recognize the backpack, and said the intruder’s knife was “a lot bigger.”
On the same day the police made contact with defendant, a detective created a six-person photographic lineup that included defendant’s photograph. Prior to viewing the lineup, D.O. was given a standard admonishment, which advised him, among other things, that the intruder may or may not be in the lineup, he was not obligated to select any person from the lineup, and that the intruder’s appearance may be different from when he observed the intruder. When D.O. was shown the lineup, he initially ruled out the first three people because they appeared too old to be the intruder. He then paused on the fourth person (i.e., defendant), stating that he believed this person was the intruder based on the scar on his face, the hair on his chin, the wrinkles on his neck and face, and his hairline or buzz cut hairstyle. D.O. circled picture number four and placed his initials next to the picture.
At trial, D.O. identified defendant as the person who broke into his apartment. D.O. said that he got a “pretty good look at [the intruder’s] face” for about seven to 15 seconds when the intruder was five or six feet away from him. He later clarified that he was able to get “a really good look at [the intruder]” before the intruder lunged at him with the knife. D.O. said that he noticed that the intruder’s eyes were bloodshot and that he had a scar on the “right side of his eye.” D.O. testified that as soon as he saw defendant’s picture in the photographic lineup, he informed the officers that defendant was the intruder.
On cross-examination, D.O. explained that although another person in the lineup also resembled the intruder, he ultimately identified defendant as the intruder because he was the only person with a scar on the right side of his face. D.O. admitted that at one point he told the officers he thought the intruder was pictured in either the second position or the fourth position (i.e., defendant’s position). He also admitted that he told officers that he did not think the intruder was in the fourth position. However, when he was advised that the intruder had “probably cleaned up” since the break-in, D.O. said defendant “is the guy because he does look cleaned up.” D.O. estimated that he viewed the photographic lineup for about eight or nine minutes.
In May 2014, defendant was charged with first degree burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). It was also alleged that a person other than an accomplice was present during the commission of the burglary (§ 667.5, subd. (c)(21)), and that defendant personally used a deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)).
Following an eight-day jury trial, defendant was found guilty on the misdemeanor drug charge. A mistrial was declared on the burglary and assault charges when the jury deadlocked on those charges. After a retrial before a different judge, the jury found defendant guilty on the burglary and assault charges. It also found true the sentence enhancement allegations. The trial court sentenced defendant to an aggregate term of eight years on the burglary and assault offenses, plus a consecutive 180 days on the misdemeanor drug offense, which was deemed served based on defendant’s custody credit. The court ordered defendant to pay various fines and fees, and awarded him 263 days of custody credits (comprised of 229 days of actual credits and 34 days of conduct credits) against his remaining eight-year sentence.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. Identification Evidence
Defendant contends the photographic lineup violated his due process rights because it was impermissibly suggestive and tainted the subsequent in-court identification. The People argue that defendant has forfeited this claim, and we agree.
In order to preserve evidentiary issues for appeal, the objecting party must make a timely objection stating the specific ground on which it is made. (People v. Morris (1991) 53 Cal.3d 152, 187, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) A defendant’s failure to object to identification evidence forfeits the issue for appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 989 [the defendant’s failure to timely object to the court’s admission of a purportedly suggestive photographic lineup forfeited his challenge on appeal to the use of that lineup at trial]; see also Evid. Code, § 353, subd. (a).)
“While it may not be necessary to renew an objection already overruled in the same trial [citation], absent a ruling or stipulation that objections and rulings will be deemed renewed and made in a later trial [citation], the failure to object bars consideration of the issue on appeal. . . . A defendant may not acquiesce in the admission of possibly excludable evidence and then claim on appeal that rulings made in a prior proceeding render objection unnecessary.” (People v. Clark (1990) 50 Cal.3d 583, 623-624, fn. omitted.)
In the first trial, defendant filed a pretrial motion to exclude the identification evidence. He contended that the photographic lineup was impermissibly suggestive because defendant was the only individual with a scar on his right cheek, and because D.O. was shown the same lineup two days later after he was shown photographs of clothing laid out “in a manner that mimicked the outline of a burglar,” and asked to identify whether the clothes were the same clothes the intruder wore. He further contended that any subsequent in-court identification would be tainted by the photographic lineup identification. The trial court denied the motion, finding that the photographic lineup was not unduly suggestive.
After the first trial ended in a mistrial on the burglary and assault charges, there was no ruling or stipulation that defendant’s pretrial motion to exclude the identification evidence would be deemed renewed in the second trial, and defendant did not renew the motion in the second trial. Further, defendant did not oppose the prosecutor’s pretrial motion to introduce the photographic lineup as part of the People’s case-in-chief on the same grounds he raises on appeal. At no point did defendant argue that the photographic lineup was impermissibly suggestive because defendant was the only individual with a scar near his right eye, his photograph was the lightest in the lineup, and the officers conducting the lineup encouraged D.O. to select defendant by telling him that the intruder probably “cleaned-up” since the break-in. Accordingly, defendant failed to preserve his claim for appeal. Defendant has not shown that an objection based on the grounds he now raises on appeal would have been futile. (People v. Thompson (2010) 49 Cal.4th 79, 130 [“a party may raise a claim on appeal despite the lack of an objection at trial where the circumstances show an objection would have been futile”].)
B. Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance of counsel by failing to preserve his evidentiary claim for appeal. We disagree.
“ ‘The law governing [ineffective assistance of counsel] is settled. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” [Citations.] It is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant’s burden as follows: “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” . . . Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal, as we have observed: “ ‘Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’ [Citation.] If the record on appeal ‘ “ ‘sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected,” ’ and the ‘claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.’ [Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
We conclude defendant has failed to carry his burden to demonstrate ineffective assistance of counsel. Defendant has not shown that trial counsel was asked for and failed to provide an explanation for not objecting to the photographic lineup as unduly suggestive, or that there could be no satisfactory explanation for counsel’s decision not to object. In lieu of renewing the pretrial motion to exclude identification evidence filed in the first trial, or objecting to the admission of identification evidence on the grounds defendant raises on appeal, defense counsel attempted to discredit D.O.’s identification of defendant through cross-examination and the testimony of an expert witness in the field of human perception and memory. Under the circumstances, trial counsel’s performance did not fall below an objective standard of reasonableness. The record does not disclose that counsel had no rational tactical purpose for his conduct. Counsel could have reasonably determined that it was unlikely that the photographic lineup evidence would be excluded as unduly suggestive, and that it was a better tactic to undermine the reliability of D.O.’s identification through cross-examination and expert testimony.
But even assuming that trial counsel’s performance was deficient, defendant has failed to show prejudice. “In order to determine whether the admission of identification evidence violates a defendant’s 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 witness’s 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.” (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
Even if we assume the identification procedure was unduly suggestive, there was no substantial likelihood of irreparable misidentification under the totality of the circumstances. The relevant factors indicate that D.O.’s identification of defendant was sufficiently reliable to warrant admission at trial. The record reflects that D.O. had a meaningful opportunity to clearly view the intruder at the time of the crime and was paying close attention to him. D.O. stated that he saw the intruder’s face for about seven to 15 seconds from five or six feet away. He explained that he was able to get “a really good look” at the intruder before the intruder lunged at him with the knife; noting that he was able to see that the intruder’s eyes were bloodshot. D.O. further explained that the area of the apartment from which he observed the intruder was illuminated by light from the kitchen.
In addition, the description D.O. provided of the intruder shortly after the break-in was generally consistent with defendant’s appearance—an unshaven white male in his 30’s with short brown hair, a medium build, and a vertical scar on his right cheek near his eye. Further, when the police made contact with defendant two days after the break-in, with the help of a composite sketch based on D.O.’s description, he was wearing a sweatshirt and possessed gloves that were similar to the sweatshirt and gloves D.O. said the intruder was wearing during the break-in. During a search of the apartment where defendant had changed his clothes on the day of the break-in, a detective found a pair of pants that were similar to the pants D.O. said the intruder was wearing.
Finally, D.O. identified defendant from among the six photographs in the photographic lineup two days after the break-in. Prior to viewing the lineup, D.O. was given a standard admonishment, which advised him, among other things, that the intruder may or may not be in the lineup, he was not obligated to select any person from the lineup, and that the intruder’s appearance may be different from when he observed the intruder. Despite those admonishments, D.O. immediately selected defendant’s photograph when he saw it. He said that he believed defendant was the intruder based on the scar on his face, the hair on his chin, the wrinkles on his neck and face, and his hairline or buzz cut hairstyle. While D.O. later said that he thought the intruder was pictured in either the second position or the fourth position (i.e., defendant’s picture) and was not sure whether defendant was the intruder, he eventually selected defendant’s picture from the lineup because he was the only person with a scar on the right side of his face. The fact that D.O. selected defendant prior to being told by an officer that the intruder “probably cleaned up” after D.O. saw him suggests that D.O.’s identification was not tainted or otherwise caused by this allegedly suggestive conduct.
C. Custody Credits
Defendant contends that the trial court erred in calculating his custody credits. According to defendant, the trial court should have awarded him 273 days of custody credits, not 263 days. The People concede the point, and we accept the People’s concession.
A defendant sentenced to prison for criminal conduct is entitled to actual custody credit for time served in custody before sentencing for the same conduct. (§ 2900.5, subd. (a); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) A defendant may also earn additional presentence credits against his sentence for good behavior, called “conduct credits.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1476.) All of the presentence credits, actual and conduct, are credited against the defendant’s imposed term of imprisonment. (§ 2900.5, subd. (a); People v. Sage (1980) 26 Cal.3d 498, 502.) “However . . . ‘the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person . . .’ ‘convicted of a felony offense listed in subdivision (c) of section 667.5.’ (§ 2933.1, subds. (c), (a).)” (Hamlin, supra, at pp. 1476-1477.) Burglary of the first degree wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary is such an offense. (§ 667.5, subd. (c)(21).)
At the time of sentencing, defendant was entitled to 394 days of custody credits for the time he served in jail from the date of his arrest (February 20, 2014) to the date of sentencing (March 20, 2015). Pursuant to section 2933.1, subdivision (c), defendant was also entitled to an additional 59 days of conduct credits, calculated as 15 percent of 394. Because defendant was entitled to a total of 453 days of custody credits, the trial court erred in concluding that he had 263 days of custody credits remaining after deducting 180 days for the misdemeanor drug offense. The trial court should have awarded defendant 273 days of custody credits against his remaining period of confinement. Accordingly, we will modify the judgment to correct this error.
III. DISPOSITION
The judgment is modified to reflect that defendant is awarded 273 days of custody credits. (§ 2900.5.) In all other respects the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and send a copy to the Department of Corrections and Rehabilitation.


/S/

RENNER, J.



We concur:


/S/

HULL, Acting P. J.


/S/

BUTZ, J.