P. v. Varnado

Filed 10/17/07 P. v. Varnado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEALS from judgments of the Superior Court of Los Angeles County,

Philip H. Hickok, Judge. Affirmed.

PETITION for Writ of Habeas Corpus in B194298. Writ denied.

PETITION for Writ of Habeas Corpus in B195683. Writ denied.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant Damion Varnado.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Varnado.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants, Damion Varnado and Bryan Varnado, appeal from the judgments entered following their convictions, by jury trial, for first degree murder and possession of a firearm by a felon (Damion only), with firearm enhancements (Pen. Code,  187, 12021, 12022.53).^[1] Sentenced to state prison for 50 years to life (Damion) and for 25 years to life (Bryan), defendants claim there was trial error. In their accompanying habeas corpus petitions, defendants contend they were denied the effective assistance of trial counsel.

The judgments are affirmed; the habeas corpus petitions are denied.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.    

1. Prosecution evidence.

There were two trials in this matter; the first ended in a mistrial when the jury could not reach a verdict. The following evidence was presented at the second trial.

Lanicia Johnson testified she lived with her boyfriend, Demetric Conley, on 83rd Street near Central. On February 19, 2004, around 10:00 p.m., Conley walked with Johnson to the bus stop at Manchester and Hooper Avenue, where they flagged down a cab for her. Conley was planning to walk back home after Johnsons cab left. He never made it.

William Blackwell testified that at about 10:30 p.m. that night, he was driving his Corvette Stingray southbound on Hooper. Lilly Landers, the mother of Blackwells girlfriend, was in the car with him. As they approached the intersection of Hooper and 84th Place, Landers told Blackwell to be careful because some kids were playing in the street. Blackwell heard a gunshot. He looked and saw three people, about 20 to 25 feet away, in the intersection of Hooper and 84th Place. Two people were struggling over a rifle; one of them, who had his back to Blackwell, was grabbing at the barrel of the rifle. The other two people were facing Blackwell. After telling Landers to duck down, Blackwell looked through the passenger-side door window as he went through the intersection. The person who had been grabbing at the rifle barrel was now on the ground and one of the other men was kicking him. The third person was holding a handgun. Blackwell testified the two gunmen look[ed] directly in my eyes. I look at them and thats when I really accelerated. Because Im thinking he is going to turn the rifle towards the car. Blackwell testified he was only five or six feet away from the gunmen when they looked up at him.

At trial, Blackwell identified defendant Damion Varnado (hereafter, Damion) as the man he had seen holding the rifle, and defendant Bryan Varnado (hereafter, Bryan) as the man he had seen holding the handgun.

Blackwell drove on to his girlfriends house, but Landers had been upset by the incident, so he only stayed a few minutes and then drove Landers back home. On the way, Blackwell passed by the shooting scene again. The police had cordoned off the Hooper/84th Place intersection and there was a man lying in the street on his back. Blackwell didnt stop because Landers was upset and he wanted to get her home. However, Blackwells girlfriend urged him to go to the police because he was on parole and his car could so easily be identified.

Blackwell went to the police station about 1:30 a.m. following the incident and spoke to Detective Jeffrey Cochran. Blackwell described the gunmen as light-skinned African-Americans in their 20s. Blackwell said the taller man had the rifle, and that he had a darker complexion and was a little older than the other gunman. The man with the rifle had a mustache and he was wearing a long-sleeved, yellow plaid shirt. The shorter man had the handgun. He was a little younger and lighter in complexion, with no facial hair, and he was wearing a white T-shirt.

Arturo Jauregui, who lived on Hooper Avenue, testified^[2]that on the night of the shooting he was inside his house when he heard a sound like a muffled gunshot. He ran out to the street and looked toward the Hooper/84th Place intersection, where he saw a body lying in the street in fetal position. He also saw two African-American men in their early 20s inside a small car, which could have been a Toyota Camry or a Mazda, in the middle of 84th Place. The car circled through the Hooper/84th Place intersection and stopped in front of the body. The two men looked at the body for a few seconds and then drove westbound on 84th Place.

Jauregui stayed next to the body to protect it from traffic. The police arrived within five minutes. Jauregui testified that, 30 minutes prior to the shooting, he had been walking along the street when he noticed a dark Lincoln Continental parked near the Hooper/84th Place intersection. There were two African-American men inside. This was not the car Jauregui had seen drive away after the shooting.

When Sheriffs Deputy Robert Amaya responded to the shooting scene, shortly after 10:30 p.m., he saw the victim lying in the street in fetal position. An expended rifle casing and a live rifle cartridge were recovered from the street. Detective Jeffrey Cochran, who arrived at the scene shortly after midnight, testified the Hooper/84th Place intersection was well-lit, with street lights at each corner.

Donald Evans testified Conley had been his best friend. He last spoke to Conley just after 10: 00 p.m. on the night of shooting. Conley said he was going to walk his girlfriend somewhere. When Evans offered the use of his car, Conley said he would let him know, but then he never called back. The next morning, Evans found out Conley had been killed. Evans was very upset and he went over to Conleys house. Bryan Varnado showed up and asked to speak to Conleys brother. Evans said he would talk to Bryan. Bryan had been over to Evanss house a few times, but he wouldnt describe Bryan as a friend. Bryan was friends with Conleys younger brother and he used to come over and hang out at the Conley house. Bryan told Evans he had some information, [i]nformation that may help with what happened to [Conley]. Bryan said that, the night before, he had been riding his bicycle north on Hooper when he was approached by two guys who asked for marijuana. Bryan said he didnt feel right about these guys, so he rode off. He had ridden a block away when he heard a single gunshot. Bryan described the two men as light skinned, although he did not say whether he thought they were African-American or Hispanic. Bryan denied having seen Conley. Evans thought Bryans placing himself at the crime scene like that was suspicious.

During the course of his investigation, Cochran identified Damion and Bryan as possible suspects. A week after the shooting, Cochran put together two photographic lineups and showed them to Blackwell. Without hesitation, Blackwell identified Damion as the man he had seen holding the rifle, and Bryan as the man he had seen holding the handgun.

The defendants were arrested at a house on 84th Street, which is one block north of 84th Place. Damion, who is Bryans cousin, had been living at this house with Bryans family. The house was close to Central, about two blocks from where Conley had been shot. At the time of the shooting, Damion was 26 and Bryan was 18. During a search of the house, police found a long-sleeved, yellow plaid shirt that matched Blackwells description of the shirt worn by Damion.

Firearms examiner James Carroll testified the expended rifle casing and the live cartridge recovered at the shooting scene were the kind generally used in semiautomatic rifles. The bullet in the live cartridge was recessed within the casing, and the mouth of the casing was dented. Carroll opined this could have resulted from the tip of the bullet striking a hard surface, such as concrete, after the live cartridge had been ejected from the rifle without having been fired. A live cartridge could have been ejected from the rifle during a struggle: If theres a struggle over the firearm and the two parties to the struggle are both holding onto the firearm, which is commonly how it works, it is possible that somebody could either intentionally or unintentionally push the bolt to the rear, which is essentially operating the action of the rifle, the way it operates but doing it manually. . . .  [] During a struggle, its possible that the parties could push or pull that bolt to the rear. And if that were to occur, the cartridge in the firing chamber would be ejected from the rifle.

According to the medical examiner, Conley was killed by a single gunshot wound to his left, upper chest. The bullet entered his body from front to back, right to left, and in a downward direction. Due to the absence of soot or stippling on Conleys body, the medical examiner opined that, when the murder weapon was fired, it was being held at least 18 inches from the entry wound.

During the first trial in this matter, Blackwell had an encounter with Damion, who told Blackwell to keep my mouth shut if I wanted to live. Damion also put his index finger to his lips, in a gesture Blackwell took to be a warning to keep quiet. At the second trial there was another encounter, during which Damion accused Blackwell of lying and said, We catch up with you.

2. Defense evidence.

Linda Kelley lived on Hooper, close to the northwest corner of the Hooper/84th Place intersection. Kelley testified that at the time of the shooting she had just finished putting her car in the garage when she heard a gunshot. Kelleys garage was in an alley that ran behind her house and parallel to Hooper. Six or seven seconds after hearing the shot, Kelley looked down the alley toward 84th Place and saw two men get into a large, dark car which was parked on 84th Place. The car looked like a Crown Victoria. The two men had light complexions and appeared to be Hispanic. One of the men was holding something that had a silver handle. The car, which had been parked facing west, then drove off westbound on 84th Place. Kelleys characterization of the two men as Hispanic was based on their coloring. While acknowledging [t]hey could have been very light-skinned blacks, Kelley believed the two men she had seen were Hispanic. She had never seen either defendant until she saw them in court.

3. Procedural background.

At the first trial in this matter, a mistrial was declared when the jury could not reach a verdict. The defendants were then convicted after a second trial.

CONTENTIONS

1. Bryan contends the trial court erred by improperly admitting extra-judicial identification evidence.

2. Defendants contend defense counsel were ineffective for failing to recall three witnesses who had testified at the first trial.

3. Defendants contend defense counsel were ineffective for failing to adequately challenge the key eyewitness evidence against them.

4. Bryan contends defense counsel was ineffective for failing to properly impeach a prosecution witness.

5. Bryan contends defense counsel was ineffective for failing to challenge prejudicial testimony about defendants booking photos.

DISCUSSION

1. Trial court did not improperly admit extra-judicial identification evidence.

Bryan contends the trial court improperly admitted inculpatory extra-judicial identification evidence by means of implied hearsay testimony. This claim is meritless.

a. Background.

Bryan asserts that, in order to bolster the credibility of Blackwells testimony at the second trial, the prosecutor elicited inadmissible testimony from [Detective] Cochran that he had narrowed his search for Black males in South Central to two (appellant and Damion) through his interviews with people involved in this case.

According to Bryan, the prosecutor set up the inadmissible evidence during the following colloquy:

Q   Explain to the jury what a 6-pack is, and how you compose a six-pack.

A   A six-pack is basically a photo lineup of six photographs. And one of the photographs being a target of a given investigation. . . . 

Q   Without telling us what people told you, were you able to at one point, after the 19th and 20th of February, 2004, identify possible suspects in your investigation?

A   Yes, I did.

Q   And who did you determine were possible suspects in the investigation?

A   That would be Bryan Varnado and his cousin Damion.

Then, on redirect examination, the following colloquy occurred:

Q   By [the prosecutor]: Did you, based on that description [i.e., the physical descriptions Blackwell had given Cochran within hours of the shooting], narrow your search for black males in South Central down to two?

A   Yes.

Q   How did you do that?

A   Through interviews with

[Defense counsel]: Objection. Foundation.

The Court: Overruled.

The witness: Through interviews with

[Defense counsel]: Objection. Hearsay.

The Court: Not yet.

The witness: With people involved in the case.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

[Defense counsel]: Move to strike based on hearsay.

The Court: No.

Bryan argues Cochrans testimony that based on his interviews with people involved in this case, he narrowed his search for suspects from the population of Black males in South Central to appellant and Damion, was implied hearsay. The trial court erred when it admitted the hearsay identification of appellant by unidentified non-testifying persons over defense counsels objection and motion to strike. Bryan complains Cochrans testimony amounted to the extra-judicial identification of the defendants by unknown persons, in violation of both the hearsay rule and his constitutional right to confront witnesses and to a fair trial.

b. No hearsay or confrontation clause violation occurred.

A declarants express words that are offered to prove the truth of an implied statement to be inferred from such express words constitute a hearsay statement . . . .  (See Jefferson, Cal. Evidence Benchbook (1972) Express Statement Offered for Truth of an Implied Statement,  1.4, pp. 11-22.) (People v. Picl (1981) 114 Cal.App.3d 824, 885, disapproved on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12; see, e.g., People v. Perez (1978) 83 Cal.App.3d 718, 726 [Any proposed relevancy of these two statements [i.e., that declarant Lopez told the testifying witness they were going to buy heroin and that he was looking for a particular car] is to the effect that Lopez was stating that he was looking for defendant as the source of his purchase. As such, Lopez was making an implied hearsay statement that defendant was a supplier of heroin.].)

Bryan argues the inescapable inference from [Detective] Cochrans testimony is that the non-testifying witnesses he interviewed identified appellant and Damion as Conleys assailants and furnished him with evidence of their guilt. That evidence was inadmissible hearsay because it was offered to establish the truth of the matter asserted appellants identification and guilt. We do not agree.

Cochran did not repeat what these unknown interviewees told him and, therefore, Bryans inference the interviewees actually identified the defendants, as opposed to having furnished other kinds of information allowing Cochran to narrow his search, is speculative. For example, Evans recounted the conversation in which Bryan had placed himself very close to the shooting scene, which gave Cochran useful information for narrowing the pool of suspects, but was not an eyewitness identification.

But even if the interviewees had provided inculpatory eyewitness identifications, Cochrans testimony was not hearsay because it was not offered to prove the truth of the matter asserted. Rather, it was offered for the non-hearsay purpose of explaining why Cochran included defendants photographs in the lineups he showed Blackwell. Immediately prior to the portion of Cochrans direct examination cited by Bryan, the prosecutor had asked, As part of your investigation, did you put a picture [of each defendant] in a six-pack? It was after Cochran answered yes that the prosecutor asked him to explain how photo arrays were assembled. Cochrans subsequent testimony on redirect examination was not offered to prove that whatever information the interviewees had given him was true; it was offered to explain why he decided to include the defendants pictures. Hence, the defense objection was properly denied.^[3]

Bryan contests this conclusion, arguing his brief on appeal cited cases rejecting this kind of implied hearsay testimony. Not so. Those were cases where a non-testifying confidential informant or a non-testifying codefendant had given police information leading to the defendants arrest. (See People v. McNamara (1892) 94 Cal. 509 [officers testimony he arrested defendant based on information from non-testifying witness was inadmissible hearsay]; Favre v. Henderson (5th Cir. 1972) 464 F.2d 359 [implied hearsay declaration violated confrontation clause where officer was improperly allowed to testify he arrested defendant based on information from unidentified confidential informants]; Molina v. State (Fla. 1981) 406 So.2d 57 [officers testimony they arrested defendant after interviewing non-testifying codefendants violated hearsay and confrontation clause rules].) A lawful arrest requires probable cause, but inclusion of a suspect in a photo array does not even require reasonable suspicion and may be done on a pure hunch. (Cf. People v. Boyde (1988) 46 Cal.3d 212, 223 [after witness picked defendant out of photo array, detective obtained warrant to search defendants home]; People v. Moore (1988) 201 Cal.App.3d 51, 54 [after receiving anonymous tip, police assemble photo array from which eyewitness makes identification; based on this identification, arrest warrant was obtained].)

The trial court did not improperly admit extra-judicial identification evidence.

2. Defense counsel were not ineffective for failing to recall three witnesses who had testified at the first trial.

Defendants contend they were denied effective assistance because defense counsel failed to call three witnesses who had testified at the first trial, which ended in a hung jury. This claim is meritless.

a. Legal principles.

A claim of ineffective assistance of counsel has two components:  First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [Citation.] [] To establish ineffectiveness, a defendant must show that counsels representation fell below an objective standard of reasonableness. [Citation.] To establish prejudice he must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) [T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)

Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed. (People v. Bunyard (1988) 45 Cal.3d 1189, 1215; see People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is matter[ ] of trial tactics and strategy which a reviewing court generally may not second-guess].) [T]he choice of which, and how many, of potential witnesses [to call] is precisely the type of choice which should not be subject to review by an appellate court. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) It is not sufficient to allege merely that the attorneys tactics were poor, or that the case might have been handled more effectively. [Citations.] [] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd, supra, at p. 709.)

b. Testimony from first trial not presented at second trial.

The prior testimony of the three witnesses who were not recalled is summarized below.

Mardia Nunley testified he had been friends with Damion for eight years and that he also knew Bryan. Nunley lived on 85th Street, about a block and a half from the Hooper/84th Place intersection. On the night of the shooting, Damion was at Nunleys house watching television. At one point, Damion and Nunleys girlfriend left the house for 10 minutes to buy cigarettes, but they returned to Nunleys before 9:00 p.m. because thats when the store closed. Nunley testified he did not hear any gunshots that night. He learned of the shooting when he got a call from his friend Deon Williams, who lived on 84th Place. After receiving the call, Nunley and Damion walked over to the crime scene.

Jerome Fisher testified that, on the night of the shooting, he was visiting his girlfriend at her house on 84th Place, just east of the Hooper/84th Place intersection. Fishers girlfriend was Deon Williamss sister. Fisher was in the front yard when he noticed a blue car parked in front of a neighbors house on 84th Place. Fisher described this car as a Lincoln Town Car or a Lincoln Continental. A Toyota pickup truck, driving eastbound on 84th Place, honked its horn and went through the intersection. After the pickup truck went by, a young Hispanic man got out of the passenger side of the Lincoln. This man was holding a rifle. As Fisher described the shooting: The Lincoln car was parked here. The victim was over in this area. The guy came from behind him, he shot the guy. As he came from behind him, the guy put his hands in the air. He tried to run across the street, and the guy shot him right here, he fell back.

Fisher testified the gunman never got close to the victim; he just raised the rifle, fired once, and then lowered the rifle. The victim fell onto his back in the street and stayed like that until the police arrived. The Lincoln pulled up to the intersection, picked up the gunman and drove away, going south on Hooper. Asked on cross-examination about the race of the gunman and the driver of the Lincoln, Fisher said, Im not for sure, but I believe they were Hispanic. After the shooting, Deon Williams, who is now Fishers brother-in-law, started calling people about the shooting.

When the police arrived, Fisher went over to report what he had seen. But a young lady started screaming at him, saying he had killed her baby. So Fisher walked back to his girlfriends house. Other than the Toyota pickup, Fisher did not see any other cars in the area at the time of the shooting. He did not see a Corvette Stingray that night. Fisher did not know Damion and had never heard his name until he was asked to testify.

Keith H. was 11 or 12 years old at the time of the shooting. He lived with his mother on 84th Place, a few houses west of Hooper. On the night of the shooting, Keith looked out his bedroom window and saw a small, blue car stop in front of his house. A man got out from the passenger side, placed a rifle on the cars roof, and pulled a black ski mask over his head. The driver and a second passenger also got out. The three men walked toward Hooper. Keith heard some arguing, then a gunshot, and then someone saying, Ow, my foot. The three men ran back to the car, which drove off in a westbound direction. Keith described the three men as Mexican. He testified he did not hear any honking or see a Toyota pickup truck. He did not see any other cars driving through the intersection that night. Keith knew the defendants because they were his mothers friends, and Damion had visited Keiths home. Keith told his mother what he had witnessed, but they never contacted the police. Even though Keith realized he might have seen the person who killed Conley, he did not say anything to the police because he didnt know what he was supposed to do.^[4]

c. Discussion.

Defense counsel could have reasonably concluded that, because there were problems with each witnesss testimony, a better strategy at the second trial would be to call the new defense eyewitness, Linda Kelley.

Nunleys alibi testimony was very imprecise as to the timing of events that night. When Detective Cochran interviewed Nunley just 10 days after the shooting, Nunleys story suffered from major inconsistencies. He said Damion had been at his house the entire time between 9:00 and 11:00 p.m. But then he said his girlfriend and Damion had left the house at 10:30 p.m. to go buy marijuana. At another point, Nunley said they went to buy the marijuana at 9:30 p.m. Then Nunley again contradicted himself and assured Cochran that he was with Damion from 9:00 to 11:00. Although Nunley told Cochran he had heard the gunshot that night, Nunley testified he did not hear any gunfire.

In addition to these inconsistencies, one version of Nunleys story actually placed Damion very near the scene of the shooting at the time it occurred. Nunley lived only about a block and a half from the Hooper/84th Place intersection, which gave Damion enough time to carry out the shooting and return to Nunleys house within 10 minutes. Damion argues this did not prove he had the opportunity to shoot Conley because Nunley never said he saw appellant leave his house carrying a rifle. But Damion could have left Nunleys house unarmed and obtained the rifle on his way to the shooting scene, perhaps from an accomplice. Of course, Nunley could have been impeached for possible bias because he was a longtime friend of Damions and he knew Bryan.

Fisher could have been impeached because he never tried to give his story to the police after being frightened by the woman at the shooting scene who accused him of killing her child. The accusation story itself was suspicious, as was the fact Fisher first told his story 11 months later to a defense investigator, just about a month before the first trial began. Raising further suspicions about whether Fisher had really been an eyewitness was the testimony of Joyce Williams, the mother of Fishers girlfriend. Joyce testified she told Detective Cochran that her sons were home the night of the shooting, by which she meant to include Fisher because she considered him one of the family.^[5] Cochran, however, testified that when he asked Joyce who had been at her house that night, she named off her children without naming Fisher.

But even if the jury could be persuaded Fisher had been there that night, there was still a significant question about what he could have possibly seen. Cochran testified Joyces house was about 200 yards from where Conley had been shot, and that the view from her front yard was somewhat obscured, particularly if there were cars parked on the south side of the street. Cochran identified a crime scene photograph which showed there had been cars parked on the south side of the street that night. There were also significant inconsistencies with other eyewitness testimony. Fisher described a completely different car from the one Jauregui saw drive away from the shooting scene. Fisher was the only witness who had the car driving away southbound on Hooper; Keith, Jauregui and Kelley had the car driving westbound on 84th Place. Fisher had the victim lying on his back in the street, whereas Jauregui and Officer Amaya testified the victim was lying in fetal position. Fishers description of the shooting left no room for a struggle between the victim and the man with the rifle and, therefore, was difficult to reconcile with Blackwells testimony. Even harder to reconcile was Fishers testimony he never saw Blackwells Corvette. As defense counsel rightly acknowledged during closing argument, there was no reason to believe Blackwell had not driven through that intersection and witnessed the shooting.

Keith H.s testimony conflicted with both Fisher and Blackwell. Keith saw the gunman get out of a car he said was smaller than a Lincoln. Keith saw three men get out of the car, which corresponded neither to the one man seen by Fisher, nor to the two men seen by Blackwell and Jauregui. Keith testified the man with the rifle put on a ski mask, but no one else said anything about a mask. Keith said he heard arguing, but not honking; Fisher heard the opposite. Keiths testimony indicated he had been having problems because of the dim light; he even testified he could not see the riflemans face.^[6] Like Fisher, Keiths credibility could have been questioned because of his connection to the defendants. Like Fisher, Keith gave an improbable excuse for not having gone to the police right away with his information.

Given these significant problems, defense counsel could have reasonably decided not to call any of these witnesses at the retrial and, instead, rely on the testimony of Kelley. Kelley had observed the suspects from less than 50 feet away, she believed the suspects were Hispanic, and her only credibility problem was comparatively minor.^[7] Damion argues the fact he got a hung jury with the first set of witnesses demonstrates trial counsel could have had no satisfactory explanation for failing to use the testimony of the same witnesses in the second trial. Not so. We know from the trial record the jury hung at 10-2 for conviction. Defense counsel could have reasonably concluded the primary factor swaying the two jurors who voted to acquit had not been the defense evidence, but rather Blackwells bumbling testimony in which he first testified Bryan had the rifle and Damion had the handgun, but then said it was the other way around. As could have been expected, this defect in Blackwells testimony had been cured by the time he testified at the second trial.^[8]

Defendants have not demonstrated that the failure to recall these three witnesses cannot be explained on the basis of any knowledge choice of tactics (People v. Floyd, supra, 1 Cal.3d at p. 709), and thus they have failed to show they were denied the effective assistance of counsel.^[9]

3. Defense counsel adequately challenged Blackwells eyewitness testimony.

Defendants contend they were denied effective assistance because defense counsel failed to adequately contest Blackwells eyewitness evidence. They claim defense counsel should have: attacked the inherent unbelievability of Blackwells testimony; called an expert witness to testify about problems inherent in eyewitness identifications; and, requested pinpoint jury instructions relating to eyewitness identifications. These claims are meritless.

a. Blackwells testimony was not inherently unbelievable.

Contrary to defendants assertions, there was nothing inherently unbelievable or physically impossible about Blackwells testimony. (Cf. People v. Barnes (1986) 42 Cal.3d 284, 306 [To warrant the rejection of the statements given by a witness who has been believed by the [jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.].) Blackwell acknowledged he had gotten no more than a fleeting glance at the perpetrators, that they had been previously unknown to him, and that the conditions under which he saw them had been very stressful. Defendants have not demonstrated that it was inherently unbelievable for Blackwell to have identified them in these circumstances; merely asserting it was physically impossible does not make it so.

Defense counsel cross-examined Blackwell extensively about those circumstances that might have impaired the accuracy of his observations, e.g., the speed he was driving, his ability to see through the passenger-side window of his sports car, and the effect of the obvious stress on his perceptions. This was a reasonable approach for contesting the credibility of Blackwells testimony.

b. Counsel not incompetent for failing to use identification expert.

We do not agree with defendants claim defense counsel were ineffective for failing to use an eyewitness identification expert. Mere generic factors affecting the reliability of eyewitness observations do not usually warrant expert testimony. (See Peoplev.Gaglione (1994) 26 Cal.App.4th 1291, 1305, disapproved on other grounds by People v. Martinez (1995) 11 Cal.4th 434, 452 [proposed testimony from eyewitness identification expert was inadmissible because defendant made no showing as to what specific psychological factors might have affected the accuracy of [the eyewitnesss] identification nor any showing that in the absence of expert testimony the factors specified in CALJIC No. 2.92 were likely to be misunderstood by the jurors].)

Because Blackwells testimony did not involve any particularly esoteric factors, defense counsel could have reasonably concluded expert testimony was unnecessary. The factors calling Blackwells identifications into question, which included such things as the speed at which Blackwell was driving, the lighting conditions at the intersection, and the stress of witnessing a shooting, were fairly generic and would have been understandable to the jury. (See, e.g., Peoplev.Plasencia (1985) 168 Cal.App.3d 546, 555 [jury did not need edification on the obvious fact that an unprovoked gang attack is a stressful event].) While the problems inherent in cross-racial identifications might be considered esoteric, they were not at issue here because Blackwell, like the defendants, was African-American.

c. Defense counsel not incompetent for failing to request pinpoint instructions.

Defendants contend defense counsel should have requested pinpoint instructions to supplement the standard jury instruction about factors to consider when weighing eyewitness identifications. We disagree.

Damion acknowledges the jury was given CALJIC No. 2.92, the standard instruction enumerating factors relevant to eyewitness identifications, but he argues the jury should have been given more specific instructions pinpointing the theory of defense. He asserts the standard instruction should have been supplemented with language focusing on: (1) how much time was available for observation; (2) how well the scene was lit; (3) how far the eyewitness was from the incident; and (4) whether the witnesss identification was affected by the fact that he was in motion at the time of the observation, or whether the fact he was in motion distracted him or affected his capacity to perceive and remember. In addition, the instruction should have been supplemented by informing the jury that You must view eyewitness testimony with caution and evaluate it carefully. 

Instructions directing the jurys attention to particular evidence bearing on the credibility of specific witnesses are generally improper. In People v. Wright (1988) 45 Cal.3d 1126 . . . , we distinguished between instructions which properly  pinpoint[] the theory of the defense  and those which improperly impl[y] certain conclusions from specified evidence . . . .  (Id. at p. 1137.) In that case we gave as an example of the former an alibi instruction which directs the jury to acquit a defendant if it believed him not to be present at the time the crime was committed. . . .  On the other hand, we disapproved as argumentative the instruction requested by the defendant in Wright, which would have instructed the jury to consider various pieces of evidence, such as the fact that all the robbers wore ski masks, in assessing the defendants guilt. [Citation.] (People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; see People v. Roberts (1992) 2 Cal.4th 271, 314 [instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate ].) The instructions suggested by Damion would have been properly rejected by the trial court as argumentative.

Moreover, the standard instruction regarding assessment of eyewitness testimony (CALJIC No. 2.92) adequately covered the subject matter defendants contend should have been included in pinpoint instructions. The jury was directed that, [i]n determining the believability of a witness, you can consider anything that has a tendency within reason to prove or to disprove the truthfulness of the testimony of that witness, including but not limited to, any of the following. The jury instructions went on to list such factors as the opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; the stress, if any, to which the witness is being subjected at the time of the observation; the witnesss ability following the observation to provide a description of the perpetrator of the act; the extent to which the defendant either fits or does not fit the description of the perpetrator previously given by this witness . . . ; evidence relating to the witnesss ability to identify other alleged perpetrators of the criminal act and whether the witness was able to identify the alleged perpetrator in a photographic lineup; . . . [and] any other evidence which relates to the witnesss ability to make an observation.

As for defendants claim the jury should have been instructed to view eyewitness testimony with caution, they mistakenly assert People v. Johnson (1992) 3 Cal.4th 1183, 1234, approved this language. That language was not at issue in Johnson, and it is axiomatic that cases are not authority for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) People v. Wright, supra, 45 Cal.3d at page 1154, held a trial court properly refused to give such an instruction because CALJIC No. 2.92 provides the jury with sufficient means to evaluate eyewitness identification testimony and alerts jurors to the factors that may affect eyewitness identifications.

In sum, defendants have failed to demonstrate defense counsel failed to adequately contest Blackwells eyewitness testimony.^[10]

4. Bryans defense counsel not ineffective for failing to challenge Blackwells prior conviction testimony.

Bryan contends he was denied effective assistance because defense counsel failed to adequately challenge Blackwells characterization of his prior sexual assault conviction as spousal rape. This claim is meritless.

On direct examination, Blackwell admitted he had committed four felonies. When the prosecutor asked Blackwell if one of those felonies had been a rape conviction in 1997, Blackwell replied, Yes. That was on my spouse. Bryans attorney objected to the spouse reference, and the trial court struck that portion of Blackwells answer. On cross-examination, Bryans attorney asked Blackwell:

Q   You had a rape conviction that you were on parole for at the time of this incident [i.e., the shooting of Conley]?

A   Yes.

Q   You were convicted of rape?

A   Spousal rape.

Q   Well, just answer yes or no, if you can.

A   Yes.

Q   You were convicted of a rape?

A   Yes.

Bryan asserts defense counsel should have challenged Blackwells second reference to spouse because his conviction had been for violating the non-spousal rape statute ( 261, subd. (a)), not the spousal rape statute ( 262). Bryan argues Blackwell was lying or mistaken when he said his conviction was for spousal rape, and that [b]ecause Blackwells credibility was the key issue, [defense] counsel should not have allowed Blackwells attempt to whitewash his past with misinformation slip by without objection or impeachment. Bryans assumption the jury would view non-spousal rape as more reprehensible than spousal rape is, hopefully, unjustified. Californias spousal rape statute has been in effect since 1979, and the Penal Code provides the same punishment for spousal and non-spousal rape. (See  264, subd (a).) We also note that Blackwell, who demonstrated he had a fairly relaxed notion of kinship when he referred to his girlfriends mother as his mother-in-law, might have innocently characterized the prior conviction as spousal rape because the victim had been his domestic partner.

In any event, Bryans attorney was not incompetent for failing to challenge Blackwells second spousal rape reference. [D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) [T]he decision whether to object, move to strike, or seek admonition . . . is highly tactical, and depends upon counsels evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony. (People v. Catlin (2001) 26 Cal.4th 81, 165.) Defense counsel could have reasonably concluded that, by forcing Blackwell to affirm he had been convicted of rape, Blackwells characterization of the rape as spousal had been effectively countered. Defense counsel might also have reasonably concluded it would be better to impeach Blackwell with the remainder of his criminal record than get embroiled in a dispute over a single prior conviction. Following the colloquy cited above, defense counsel went on to get Blackwell to admit he had been convicted of nine other felonies, most of which were theft-related and, therefore, more probative of Blackwells credibility than a rape conviction.

Bryan has failed to demonstrate defense counsel was ineffective for failing to adequately challenge Blackwells characterization of his rape conviction.

5. Bryans defense counsel was not ineffective for failing to object to testimony relating to Bryans booking photograph.

Bryan contends he received ineffective assistance because his attorney did not object to a series of questions the prosecutor asked Detective Cochran about using Bryans booking photograph in the photo array shown to Blackwell. This claim is meritless.

a. Proceedings below.

The prosecutor questioned Cochran about how he put together the photo arrays shown to Blackwell. In particular, Cochran was asked how he obtained the target photos, i.e., photographs of those persons Cochran considered to be suspects in the Conley shooting. When the prosecutor asked, By the way, where did you get the target photos from?, Cochran replied: The target photos are obtained basically from booking photographs. After establishing that two photo arrays had been shown to Blackwell on February 26, 2004, the prosecutor asked:

Q   . . .  When did you serve the search warrant?

A   It was the 28th.

Q   And is that the day that the defendants were arrested?

A   Yes.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 

. . . . . . . . . . . . . . . . . . . . . . . . . . . 

Q   . . .  And as you review the booking photos of both defendants, do they appear to look the same in [terms] of the physical description in the booking photos as compared to the six-pack photo?

A   Yes, sir.

b. Discussion.

Bryan argues defense counsel was deficient for allowing the prosecutor to signal the jury that police already had defendants booking photos before they were arrested in this case: Counsel was ineffective because he should have realized the import of the prosecutors line of questions before the prosecutor was able to fully flesh out his point about the booking photo and made a timely objection. . . .  The prosecutors question [W]here did you get the target photos from? was purposely meant to elicit evidence that was irrelevant and improper character evidence.

We disagree. The record shows defense counsel had reason to expect the prosecutors question would elicit a far less harmful answer. When Cochran previously explained how he had assembled the photo arrays, he testified: The six-pack, the photographs are obtained through law enforcement photo files . . . . Defense counsel had no reason to expect that the second time around Cochran would say booking photos instead of law enforcement photo files.^[11] And when Cochran used this new characterization, defense counsel could have reasonably concluded any objection would have merely served to highlight the answer. (See People v. Stewart (2004) 33 Cal.4th 425, 509 [record does not preclude satisfactory explanation for defense counsels action because counsel could have reasonably concluded objection (and possibly an admonition as well) likely would have served to highlight matter that might be unfavorable to defendant].)

We conclude Bryans defense counsel was not ineffective for failing to object to Cochrans testimony about Bryans booking photograph.

DISPOSITION

The judgments are affirmed; the habeas corpus petitions are denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Because Jauregui was unavailable as a witness at the second trial, his testimony from the first trial was read into evidence.

^[3] Bryan claims admission of this testimony violated the confrontation clause, as construed by Crawford v. Washington (2004) 541 U.S. 36. The Attorney General rightly points out there are no confrontation clause restrictions on the introduction of out-of-court statements for non-hearsay purposes, i.e., statements not offered for the truth of the matter asserted. (See People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 [Crawford made clear that there are no confrontation clause restrictions on the introduction of out-of-court statements for nonhearsay purposes.].) Admission of this testimony did not violate Bryans right to a fair trial.

^[4] Q   After you found out that someone got killed, did you call the police? [] A   No. [] Q   Why not? [] A   Because they were there that night. [] Q   But you saw somebody who might have done the shooting. [] A   Yeah. [] Q   You didnt want to tell the police? [] A   I didnt I didnt know what I was supposed to do. Q   Did you ever call the police and tell them? [] A   No. [] Q   Why not? [] A   I dont know.

^[5] Between the time of the shooting and Joyces statement to Cochran, Fisher had married his girlfriend.

^[6] Asked if he was sure the car had been light blue, Keith testified: Yeah, I guess so. Because I really couldnt see it because it was at night and it wasnt much light. The following colloquy then occurred: Q   What race were they? [] A   Mexican. [] Q   And can you describe what the guy with the rifle, what did he look like? [] A   I couldnt tell. I couldnt see his face. (Italics added.) Q   And you said the front passenger, when he got out he lifted up the seat and brought out a rifle? [] A   Yes. [] Q   What color was the rifle? [] A   I couldnt see. [] Q   Was there something in your way? [] A   No. It was too dark.

^[7] When Detective Cochran interviewed Kelley the morning after the shooting, she told him about the car she had seen drive away, but she did not say she had seen two men walk up to the car before it drove away, or that she thought the men were Hispanic. Kelley testified she had been reluctant to get involved because of a bad court experience. She had previously been a witness in a criminal case and she felt vulnerable when her address was revealed in court. Kelley testified she had lived in the same neighborhood her entire life and she was afraid of retribution. However, when she saw one of the defendants in custody at the time of the preliminary hearing, she realized he could not have been one of the men she saw that night because he was not Hispanic.

^[8] Moreover, because Damion was represented by the same attorney at both trials, the defense teams presumably knew not only what testimony the three defense witnesses would give, but also what their demeanor would be while giving it.

^[9] Defendants habeas corpus petitions also claim there was ineffective assistance of counsel because of the failure to call these three witnesses at the second trial. The only additional relevant information contained in the petitions is that, upon being asked by appellate counsel why the witnesses were not recalled, Damions trial lawyer said he had made a tactical decision, one reason for which had been discrepancies in the witnesses testimony. This information only reinforces our conclusion there is no merit to the ineffective assistance of counsel claims. We reject those portions of the habeas corpus petitions raising this issue.

^[10] That portion of Damions habeas corpus petition which raises this same issue is denied.

^[11] Bryan argues Cochrans earlier reference to law enforcement photo files does not relieve defense counsel of responsibility because it was not only the booking photos answer, but also the series of subsequent questions that was objectionable. But those subsequent questions, and the answers to them, related to the new booking photographs generated by defendants arrest in the current case. Therefore, the subsequent questions did not suggest defendants had been arrested before the Conley shooting.