Filed 5/10/17 P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MARCEL WILLIAMS,

Defendant and Appellant.
C079293

(Super. Ct. No. 12F04001)


A jury found defendant Marcel Williams guilty of second degree robbery and found true the allegation that defendant personally used a firearm during the commission of the crime. The trial court found true several sentencing enhancement allegations and sentenced defendant to an aggregate term of 27 years in state prison. On appeal, defendant contends the trial court abused its discretion in admitting a photograph displaying defendant’s gang-related tattoos and photographs of multiple hand guns. Alternately, defendant contends he received ineffective assistance of trial counsel. We conclude the claims are forfeited, conclude defendant received effective counsel at trial, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2012, Pardip Sangha was working in a cigarette store when defendant and another man entered the store. Defendant, who was wearing a wig and sunglasses, walked to the cash register where Sangha was standing, pulled a gun from his pocket, told Sangha the gun was real, and “raised it up.” He demanded money, cigarettes, and other things from Sangha while the other man vaulted a counter and put into a bag items from the store. Sangha gave the defendant all the money that was in his register. Meanwhile, the other man repeatedly told defendant to shoot Sangha. Defendant told Sangha this was “not the first time he is doing this, he had done this before, so whatever he is saying [Sangha had] to follow.”
After the robbery, Sangha told police that “he was sure he could recognize the armed suspect.” He also told police the gun used to rob him was a “snubbed nose revolver type of handgun.”
On May 22, 2012, Detective Mike French contacted Sangha. Sangha told Detective French he recognized the gunman as defendant, a frequent customer of the store who had many tattoos on his upper torso, neck, and face. Sangha described the gun used in the robbery as a dark revolver with a brown handle and a short barrel. He later identified defendant as the gunman in a six-pack photo lineup, and identified in a photograph the gun used by defendant to rob him.
Further investigation revealed a fingerprint, left on the counter during the robbery, belonged to defendant’s brother, Anton Jefferson.
A week after the robbery, defendant and Jefferson were stopped by police. Defendant was taken to the police station and placed in an interview room. It is common practice in the Sacramento Police Department for officers to leave personal items found with suspects outside of the interview room the suspect was taken to. Detective Shawn Ayers took a cell phone that was placed outside of defendant’s interview room and searched it. Although Detective Ayers was at the scene of the traffic stop, he was not the person who initially found the phone. In fact, he did not know who specifically, besides stating that it was a transport officer, could have seized the phone or put it outside defendant’s interview room. He also never determined who the subscriber to the phone was or had any knowledge that that was ever done. Detective Ayers denied learning that the phone did not belong to defendant and had no knowledge to dispute a claim the phone did not belong to defendant. He acknowledged that it was possible the phone belonged to someone else in the car besides defendant.
On the phone, Detective Ayers recovered 10 photographs of interest and forwarded them to Detective Mike French. One of the photographs depicted a “black snub nose revolver with a brown handle,” along with a silver semiautomatic handgun with a black grip. Another depicted two black snub nose revolvers with brown handles, one a larger caliber than the other. A third photograph was of defendant.
The People charged defendant with second degree robbery. The People further alleged defendant personally used a firearm during the commission of the robbery, was previously convicted of a serious felony, and served two prior prison terms. Defendant pled not guilty.
Before trial began, defendant filed several motions in limine including a motion to “exclud[e] evidence of defendant’s purported gang involvement or reference to defendant’s gang tattoos,” and “an order excluding evidence of a cell phone.” The People argued the upper body tattoos depicted in the photograph of defendant were relevant to the victim’s identification of defendant. Defendant argued the photograph was irrelevant and prejudicial because it showed defendant’s gang-related tattoo and that he was making a gang sign and holding cash. These indicia of gang affiliation, he argued, were irrelevant to the People’s case and highly prejudicial. The People agreed defendant’s gang-affiliation was irrelevant. Defendant offered to take the photograph and block out the money and the gang sign. This would also at least partially obstruct the gang-related tattoo, which already was difficult to discern.
The trial court responded: “Why don’t you [defense counsel], take a shot at what you think works and then we can have a further discussion about it. So I will defer the resolution of that because it sounds like with regard to the first part of it [the prosecutor] is not planning to go into the gang issue. He is simply looking at the tattoos as potential identification which would seem to the Court to have some relevance. [¶] [Defendant’s Counsel]: Understood.”
Defendant’s trial counsel went on to argue defendant’s motion in limine to exclude evidence of a cell phone. Trial counsel opened by saying, “this is a motion I prepared before I had subsequent discussions with [the prosecutor]. It’s my belief that there is no phone, at least that is in [defendant’s] name, so I don’t know what the officer is going to testify to. [¶] The phone was found in the car. It was found on [defendant]. I guess we will just have to take a wait-and-see attitude. I assume pictures from a phone that weren’t in his name may still be admissible under these circumstances, but, . . . .”
Defendant’s counsel further explained that at the time of the traffic stop, defendant’s phone was at his house. He acknowledged again that the photographs depicting defendant and the guns were “admissible anyway” but objected to “any characterization” that the phone belonged to defendant. The prosecutor clarified that during his interview with detectives, defendant told them the only cell phones taken at the traffic stop were his brother’s and his friend’s.
The court concluded the discussion: “Sounds like the only issue here really is a foundational one, whether the phone was in the car or was on [defendant’s] possession. And either way, it would seem that the photographs on the phone would still come in so long as one of those foundations is laid.
“Am I missing something?
“[Defendant’s Counsel]: For the purposes for which the photos are being introduced, I would agree, yes. If they were being introduced to establish that it was his phone and that has some other relevance, I would disagree.”
During trial, the gun photos were first presented during Sangha’s testimony. Sangha testified that he recognized one of the guns in the photos as the gun used during the robbery. Defendant’s counsel did not object.
All three photographs were presented later during Detective Mike French’s testimony. Detective French testified the photographs were e-mailed to him by Detective Ayers, who said he took the photographs from defendant’s phone. No objection was made.
The photographs were then published to the jury without objection. Detective French described the guns depicted in the photographs admitted as exhibits 5 and 6, and identified defendant as the person in the photograph admitted as exhibit 7. The gang sign and the cash were blocked out of the photograph depicting defendant, blocking which also partially obstructed defendant’s gang-related tattoo.
On cross-examination, defendant’s trial counsel asked Detective French whether he knew in fact the photographs came from a phone that belonged to defendant. Detective French said that was what he was told by Detective Ayers but he did not know whether Detective Ayers confirmed the phone belonged to defendant. Detective French never tried on his own to determine who the owner of the phone was because the owner of the phone was not relevant to his investigation.
Defendant’s counsel also cross-examined Detective Ayers, who testified that he did not know for certain to whom the phone belonged but assumed it belonged to defendant because it was standard in their department that when a phone is placed outside an interview room, it belongs to the individual who is in that room. Detective Ayers acknowledged he could not tell from the photos to whom the guns belonged, nor who took the pictures or who was holding the guns. He also acknowledged the phone did not contain any pictures of defendant holding any of the guns.
The jury found defendant guilty as charged. In a bifurcated proceeding, the trial court found the enhancement allegations true. The court later sentenced defendant to an aggregate term of 27 years in state prison.
DISCUSSION
I
Admission Of Photographs
Defendant contends the trial court abused its discretion by admitting a photograph of defendant that showed his gang-related tattoos. Defendant moved in limine to exclude this photograph and the trial court deferred ruling on the motion. Defendant never reasserted the objections or pressed for a ruling when the photographs he now challenges were presented during trial. Accordingly, the issue has been forfeited. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171 [where party files a motion in limine but does not secure an express ruling from the court, argument is forfeited].)
Defendant further contends the trial court abused its discretion in admitting photographs of multiple hand guns, when only one of the guns was identified by the victim as the gun used in the robbery. The additional guns, defendant argues, “were not relevant and were inflammatory” and thus inadmissible under Evidence Code section 352. Defendant did not raise this argument in the trial court.
In the trial court, defendant moved in limine to exclude “evidence of a cell phone.” In support of his motion, defendant argued the photographs from the cell phone, including the gun photos, could not be used as evidence the gun belonged to defendant. He essentially conceded the photographs were otherwise admissible.
The trial court ruled “the only real issue here is was it [defendant’s] phone in terms of some kind of legal possession as opposed to having some actual or constructive possession. [The prosecutor] can at least elicit the testimony from the witnesses about the phone and we will see if there is an issue. And if there is, you can make an objection at that point.” When the gun photographs were presented, defendant raised no objections. Under these circumstances, defendant’s objection to admission of the gun photographs as unduly prejudicial has been forfeited and cannot be raised on appeal. (Evid. Code, § 353.)
II
Ineffective Assistance Of Trial Counsel
Defendant then argues that he received ineffective assistance of counsel because trial counsel failed to “more fully object to admission of the evidence.” We are not persuaded.
“[T]o establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) “If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (Id. at p. 746.)
First, with regard to the photograph depicting defendant’s tattoos, the claim was forfeited not because counsel failed to “more fully object” to the photograph but because counsel did not secure a ruling on the motion in limine. Why counsel did not feel the need to secure the ruling is apparent from the record: those portions of the photograph that trial counsel found particularly objectionable, the gang sign and the cash, were redacted from the photo before it was presented to the jury. Counsel had already achieved his stated goal -- keeping the jury from seeing or hearing about the objectionable portions of the photograph. This is a reasonable basis for not pursuing a ruling or renewing the objection.
With regard to the gun photographs, counsel’s only objection at trial was that the photographs could not be used to prove the cell phone from which they were taken belonged to defendant. Trial counsel was not asked why he did not also object to the photographs under Evidence Code section 352. It appears from the record, however, that trial counsel recognized the photographs had some relevance for identification of defendant as the robber and were admissible for that purpose. Instead of arguing that they were unduly prejudicial, counsel made the reasonable tactical decision to attack the weight of the photographs as evidence rather than their admissibility. Counsel questioned Detective Ayers extensively about his knowledge of who owned the phone and the process for determining ownership of a phone. Detective Ayers admitted that he could have determined ownership of the phone if he had applied for a warrant. Detective Ayers also testified he could not tell from the gun photographs who actually owned the guns or who was holding the guns when they were photographed, much less who took the photographs of the guns. Finally, defense counsel asked whether Detective Ayers found photographs on the phone of defendant with any firearms, to which he responded that he did not.
In sum, we conclude defendant has failed to show he received ineffective assistance of counsel at trial.
DISPOSITION
The judgment is affirmed.


/s/
Robie, J.
We concur:


/s/
Nicholson, Acting P. J.


/s/
Duarte, J.