Filed 5/11/17 P. v. Vega CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR VEGA,

Defendant and Appellant.

F070233

(Super. Ct. No. LF009842A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Donald B. Squires, Judge.*
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On August 22, 2014, after a jury trial, defendant Victor Vega was found guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The jury found true allegations in both counts that defendant committed his offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and caused great bodily injury to the victim (§ 12022.7, subd. (a)). In count 1, the jury found true an allegation defendant premeditated killing the victim willfully and deliberately (§ 189), and personally used a weapon (§ 12022, subd. (b)(1)).
In a bifurcated proceeding, the defendant waived a jury trial on the truth of prior convictions. The trial court found true allegations defendant had convictions qualifying as serious or violent felonies under the three strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) for second degree robbery (§ 212.5, subd. (c)) and attempted unlawful taking of a vehicle (§ 664; Veh. Code, § 10851, subd. (a)). The court also found true an allegation defendant qualified for prior prison term enhancement (§ 667.5, subd. (b)).
On October 2, 2014, the trial court struck one of defendant’s prior strikes and sentenced him to a term of 30 years to life on count 1, plus determinate terms of three years for the great bodily injury enhancement, one year for the deadly weapon enhancement, and one year for the prior prison term enhancement. The court stayed defendant’s sentence on count 2 pursuant to section 654. Defendant’s total prison term is an indeterminate sentence of 30 years to life plus a determinate sentence of five years. The court granted total custody credits of 277 days.
On appeal, defendant contends his trial counsel was ineffective. Defendant argues there were several assailants of the victim. Defendant contends because defense counsel successfully suppressed a suggestive photographic lineup used to identify him, defense counsel could not later use the suggestive photographic lineup to argue to the jury the identification process was suggestive and unfair. We find no error and affirm the judgment.
FACTS
Assault of Daniel Gonzalez
Defendant is a member of the Lamont 13, or Varrio Chico Lamont, street gang. Lamont 13 aligns with the Southerners and is subservient to the Mexican Mafia prison gang; their rivals are the Northerners and the Nuestra Familia prison gang. In 2009, police investigated defendant as a potential suspect for an assault, and he admitted he was a member of the gang. Defendant has numerous tattoos reflecting his allegiance to Lamont 13, including but not limited to the Mayan symbols for the number 13 on his left brow, VCL—for the term “Varrio Chico Lamont”—on his chest in Old English style writing, “Lamonster” on his left eyebrow, “Lamont” on his neck, a K on his right cheek, a C on his left cheek, and “Varrio” and “Chico” on his hands.
At 7:00 p.m. on December 21, 2013, Daniel Gonzalez was walking in Weedpatch near Harold Street and Ralph Avenue. Gonzalez wore a dark blue bandanna to warm his head and carried a folding pocket knife for protection. A group of males entered the road from an adjacent field and approached Gonzalez. The group wielded white pipes and immediately surrounded Gonzalez.
An individual, who Gonzalez later identified in court as defendant, approached Gonzalez and asked where he was from. Gonzalez identified defendant at trial as the person who came up to him, spoke to him, and assaulted him. “Where are you from” is a common phrase gang members use to ask unknown individuals what, if any, gang they identify with. Gonzalez told defendant, “I don’t bang.” When confronting Gonzalez, defendant stood about three or four feet away. Gonzalez said he never opened the knife he was carrying in his pocket. Gonzalez later told Deputy Daniel Perez the person who stabbed him had a tattoo on each cheek.
Gonzalez turned to walk away, and the group immediately began assaulting and yelling at him. Gonzalez was struck in the head and stabbed in the back, chest, and arms. Gonzalez fell to the ground and put his hands up to protect himself. Gonzalez was bleeding and scared. Roxanne Sarabia observed the assault while sitting in her car and talking on her phone. Sarabia heard incomprehensible yelling from a group of individuals screaming at one man by himself. The group completely surrounded the lone man. Sarabia exited her car, ran towards the assailants, told them to stop, showed them the phone in her hand, and said she was calling the police. Sarabia chased the assailants. The assailants ran away from her. After calling Sarabia a bitch and throwing a pipe at her, the assailants scattered.
Officers arrived at the scene. When asked to describe the attackers, Gonzalez whispered to an officer that “it was Lamont.” One deputy explained there was some lighting near the site of the assault, but not very much. Gonzalez blacked out and was taken to the hospital, where he was treated for life-threatening injuries. Gonzalez’s injuries included a broken rib, a collapsed lung, and stab wounds on his back, chest, and arms. Gonzalez spent 11 days in the hospital, had two surgeries, and as of the time of trial he was still receiving treatment, including pain medication, for his injuries.
Two days after the attack, probation officers Elizabeth Madden and Carlos Sillas conducted a compliance check on defendant. The officers searched defendant’s house and found a knife and a sheath on a shelf in his bedroom closet. The officers arrested defendant because possessing a knife violated his probation terms.
DNA obtained from dried blood detected on the knife and sheath was analyzed at the county crime lab and compared with DNA samples collected from Gonzalez and defendant. The analysis revealed three DNA profiles; neither defendant nor Gonzalez could be excluded as contributors to the DNA obtained from the knife and sheath. It was 745,000 times more likely that defendant’s DNA was on the knife than a coincidental match from a Hispanic male. It was 30 quintillion times more likely that Gonzalez’s DNA matched the DNA on the knife than a coincidental match among Hispanic males. It was 3.4 times more likely that defendant’s DNA, and 68 quintillion times more likely that Gonzalez’s DNA, matched the DNA on the sheath than a coincidental match among Hispanic males.
Deputy Perez of the Kern County Sheriff’s Department questioned Gonzalez in the hospital approximately a week after the assault. Gonzalez told Perez the assailant who approached him and asked where he was from had a tattoo on his cheek. There were between five and seven assailants.
In phone calls from the jail played for the jury, defendant discussed the knife and sheath the probation officers seized from his room. He told a friend, “Fuckin’ that P.O. got me though fool. And fuckin’ I was trying to go, I was trying to sleep bomb that day dawg. I was like fuck this fool. [¶] … [¶] … I know fool. Hey, hey it was ’cause of that fuckin’ knife dawg if I didn’t have that shit in the pant drawer I would of got away with it.… [¶] … [¶] … I was too lazy to put it anywhere that’s why that night when I, when I, the pad I was tired fool.” In a separate call, he told an unknown male that he was in jail for “just a violation. The[y] found my knife fool. The one that was, that I— [¶] … [¶] … The one that I took that day for the, for the peckers.”
Suppression of Defendant’s Photographic Lineup
Defendant brought a pretrial motion to suppress the photographic lineup shown to Gonzalez on the ground it was unduly suggestive. Defendant sought to suppress any testimony of Gonzalez’s identification of defendant from the lineup. The pretrial hearing on defendant’s motion was held on August 14, 2014. Deputy Perez testified he prepared a six-pack photographic lineup that included a picture of defendant to show to Gonzalez a week after the assault. The lineup was created by a computer application called Cogent that builds a random lineup from a picture of the defendant.
Prior to showing Gonzalez the lineup, Perez admonished him the photographs may or may not have the assailant’s picture, to keep in mind hairstyles and facial hair can be easily changed, the photographs may not depict the true complexion of a person, and to pay no attention to any markings or numbers appearing on the pictures.
Defendant was subject 4 in the lineup. After viewing the lineup, Gonzalez flipped through full-page photos of the six people in the lineup. Gonzalez stopped and stared at the picture of defendant, placed his hand over defendant’s forehead, and told Perez defendant was one of his attackers. Gonzalez spent a lot of time going through the stack of photos before identifying defendant. Gonzalez also told Perez his attacker had a tattoo on his cheek. Defendant’s photograph was the only one where the subject had multiple facial tattoos. Perez did not direct Gonzalez to identify anyone in the lineup.
The trial court granted defendant’s motion, noting it had never seen such a bad lineup. The court explained that although subject 1 may have had a facial tattoo, it was hard to see because of shading on his face, and defendant was the only subject who had two large facial tattoos. The court excluded the identification and the pictures used in the lineup.
Defense counsel subsequently moved to exclude Gonzalez’s in-court identification of defendant on the ground such an identification would be the product of the tainted photographic identification. The trial court denied defendant’s motion.
Defense counsel cross-examined Gonzalez and a deputy about the street lighting the evening of the assault. Defense counsel questioned Sarabia about the clothing the attackers were wearing. She explained all were wearing hoodies. During closing argument, defense counsel used the suppressed photographic lineup to defendant’s advantage. Defense counsel argued to the jury Gonzalez identified his primary assailant as having a single tattoo on his face.
Counsel emphasized the prosecution failed to provide any evidence of prior identification by Gonzalez of defendant, failed to produce evidence Gonzalez was shown a photographic lineup of defendant, and was given no opportunity to verify or eliminate defendant prior to trial. Counsel argued Gonzalez walked into court, saw defendant with two tattoos on his face, and identified him without making a prior identification. Counsel argued it would have been more fair for Gonzalez to identify defendant out of a group of subjects with tattoos on their faces. Counsel argued mistaken identifications are made all of the time.
Among the instructions the jury was given on how to evaluate identification testimony were: whether the witness knew the defendant prior to the event, how well the witness could see the perpetrator, what was the witness’s ability to observe including the lighting, was the witness under stress when making the observation, did the witness give a description of the perpetrator that compares to defendant, and how much time passed between the event and the witness’s identification of defendant.
DISCUSSION
Alleged Ineffective Assistance of Trial Counsel
Defendant contends his trial counsel was ineffective because when counsel successfully suppressed the lineup, he removed from the jury’s consideration the issue of whether Gonzalez’s identification of defendant’s photograph was reliable or the result of an unfair photographic lineup that clearly singled out defendant’s photograph from the others in the lineup. Defendant argues his trial counsel had no rational tactical purpose in pursuing suppression of the lineup, and there is no satisfactory explanation for counsel’s conduct. We reject defendant’s assertions.
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only a deficient performance, which is a performance below an objective standard of reasonableness, but also prejudice. 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. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption trial counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will only occur if: (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel’s choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant’s argument assumes the jury would view an unduly suggestive lineup objectively and conclude Gonzalez’s identification of defendant was tainted and unreliable. Defendant extrapolates from this assumption the jury necessarily would have reached a more favorable result than convicting him for attempted murder. Defendant’s argument is speculative. Defendant fails to account for the strong possibility of a negative effect on the jury from viewing the tainted photographic lineup. Defendant is undeniably subject 4 and the only one with clearly visible, large tattoos on each side of his face. Viewing his photograph could easily have the opposite effect on the jury and reinforce the jury’s perception defendant had to be the assailant because his tattoos were unique when compared to five other subjects without similar tattoos across their faces.
The strategy defendant argues his counsel should have followed carried other risks. As the People observe, the trial court’s determination the photographs in the lineup were unduly suggestive was guided by years of legal experience and case law. There is no guarantee the jury would have viewed the photographs the same way. Had the lineup been shown to the jury, the prosecutor could have had Deputy Perez testify as he did during the pretrial hearing that the photographs were chosen by a computer application. This could have given the computer-generated lineup the air of scientific legitimacy, authority, or a respectability it did not legally or objectively warrant. Looking at the computer-generated lineup, the jury could have logically concluded the evidence did not undermine but actually bolstered Gonzalez’s in-court identification.
Rather than showing the jury the contested photograph, defense counsel argued to the jury there had been no identification of defendant by Gonzalez prior to trial. Defense counsel directly challenged Gonzalez’s identification of defendant at trial—which was eight months after the incident—and was based on the fact defendant was the only person in court with such large tattoos on his face. Defense counsel noted to the jury the lighting at the time of the incident was poor. The instructions to the jurors concerning how they were to weigh eyewitness identification of defendant fit well into defense counsel’s approach in trying to undermine the credibility of Gonzalez’s testimony.
Defendant’s argument is a challenge to the sound tactical decisions made by his attorney at trial. The potential prejudice to defendant by using an unduly suggestive photographic lineup was far greater and more fraught with danger than defense counsel’s sound, rational, and reasoned tactical choice to use other tools to undermine Gonzalez’s credibility in making the identification.
The morning after the game is played, thousands of sports fans, guided with the clarity of hindsight, profess to know how they could have played the game better than the athletes executing complex plays on the gridiron. Like other Monday morning quarterbacks, defendant is challenging his counsel’s thoughtful tactical decisions after the fact. Defendant has failed to show inadequate representation by his trial counsel, and we find his argument unpersuasive.
Finally, defendant has failed to demonstrate the second prong of ineffective assistance of trial counsel: prejudice. Defendant must show a reasonable probability that—but for counsel’s mistakes—defendant would have achieved a more favorable outcome. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394.) A reasonable probability is one sufficient to undermine confidence in the outcome. (In re Hardy, supra, 41 Cal.4th at p. 1018.)
With or without the lineup, Gonzalez described his attacker as being within feet of him and having a tattoo on his face. This made Gonzalez’s in-court identification of his attacker credible. The DNA evidence from the knife and the sheath it was stored in, however, overwhelmingly showed the blood was Gonzalez’s. The knife and sheath were discovered during a probation search of defendant’s bedroom inside his closet. During a recorded jailhouse conversation, defendant admitted he brought the knife with him that day and had been too lazy to dispose of it when he returned home, leaving it in his closet. With or without the photographic lineup before the jury, the outcome of the case would not have been different had defense counsel chosen a different tactic.
DISPOSITION
The judgment is affirmed.


PEÑA, J.
WE CONCUR:



GOMES, Acting P.J.



SMITH, J.