P. v. Bukhari

Filed 4/4/07 P. v. Bukhari CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez, Barry J.T. Carlton and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, Samad Bukhari was convicted of robbery and found to have personally used a firearm during the commission of that offense. He contends there was insufficient evidence to prove his gun was real, and his attorney was ineffective for failing to challenge a photographic lineup in which the victim identified him as the robber. We reject his contentions and affirm the judgment.

* * *

Jose Parra was walking home from a taco shop late one night when Bukhari ducked out from behind a dumpster with a gun. Approaching Parra from the front and side, Bukhari told him to wisen up and grabbed him by the neck. Then he reached into Parras pocket and took $400. After that, he hit Parra in the head with the butt of the gun and pushed him to the ground. Even so, Parra was able to get the license number of Bukharis car as Bukhari drove away. Parra also noticed Bukhari spoke with a Middle Eastern accent and looked Arabic or something like that.

That night, the police showed Parra a six-person photo lineup. Although one of the photos was of Bukhari, Parra failed to identify anyone in the lineup. Eleven days later, the police showed Parra more photos. This time, they included a more recent photo of Bukhari and showed Parra the photos one at a time. On the third photo that of Bukhari Parra exclaimed, Thats him. Thats the guy that robbed me. Parra also identified Bukhari at trial.

When the police arrested Bukhari, they noticed he had a Middle Eastern accent. He was also determined to be the registered owner of the car used in the robbery. At trial, his wife testified she had the car at work on the night in question, but she failed to provide any documentary evidence to prove she worked that evening.

I

Bukhari contends there is insufficient evidence the gun he used during the robbery was real. He is wrong.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence that is, evidence which is reasonable, credible, and of solid value from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.] In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendants guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. [Citation.] (People v. Little (2004) 115 Cal.App.4th 766, 771; see also People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Bukharis jury found true an enhancement allegation that during the robbery, he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). The firearm need not be operable or loaded for this enhancement to apply. (Ibid.) Nor need it be recovered. (See People v. Hayden (1973) 30 Cal.App.3d 446, 449, 452-453, disapproved on another ground in People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10.) Basically, all the law requires is evidence of a firearm that is designed to shoot and gives the appearance of shooting capability. (Id. at p. 452; see also Pen. Code,  12001, subd. (b) [defining firearm as a device designed to be used as a weapon that expels projectiles by the force of an explosion or any other form of combustion].) This may be shown by circumstantial evidence. (People v. Hayden, supra, 30 Cal.App.3d at p. 451.) Indeed, [f]rom testimonial descriptions of the weapon and its role in the commission of the crime, a jury may draw a reasonable inference of guilt. Reasonableness of the inference depends upon adequacy of the descriptions. (Id. at p. 452.)

Parras description of Bukharis gun was quite telling. He testified it was the type that used a clip, i.e., a semiautomatic, as opposed to a revolver. He could not remember its exact color, but the weapon appeared dark and shiny to him. It also seemed real, which is why he did not put up a fight against Bukhari; he was afraid Bukhari would use the weapon on him. Parra had seen guns many times before, and when the investigating detective showed him his semiautomatic handgun, Parra said it looked like the gun Bukhari had. And, as he did at trial, he told the detective that Bukharis gun appeared to be real.

Parra also told the detective that Bukharis gun was metal, but at trial he did not rule out the possibility of it being plastic. All he knew is that it felt hard when Bukhari struck him in the head with it. On cross-examination, he was asked how he knew Bukharis gun was not a BB gun. Parra replied, I dont know. Bukhari interprets this reply as proof his gun could have been a BB gun, which does not qualify as a firearm for purposes of the use enhancement. (See People v. Vasquez (1992) 7 Cal.App.4th 763.) However, as the Attorney General point out, it could also mean that Parra was simply at a loss to explain how he knew Bukharis gun was not a BB gun.

As noted above, the rules of appellate review require us to consider the evidence including Parras testimony on this point in the light most favorable to the judgment. (People v. Welch (1999) 20 Cal.4th 701, 758.) Doing so, and considering the record as a whole, we conclude there is substantial evidence to support the jurys finding Bukharis gun was real.[1] We therefore reject Bukharis challenge to the sufficiency of the evidence.

II

Bukhari also contends his attorney was ineffective for failing to move to suppress the evidence of the second photo lineup. We disagree.

A defendant alleging ineffective assistance of counsel must show his attorneys performance was both inadequate and prejudicial, meaning not only that his attorney performed below par, but that it is reasonably probable he would have obtained a more favorable result but for counsels alleged failings. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Moreover, [a] defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Bukhari argues his attorney should have challenged the second lineup as being violative of his due process rights. However, a violation of due process only occurs if a pretrial identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citations.] Whether due process has been violated depends on the totality of the circumstances surrounding the confrontation. [Citation.] The burden is on the defendant to show that the identification procedure resulted in such unfairness that it abridged his rights to due process. [Citation.] [Citations.] [Citation.] [] Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witnesss identification the identity of the person suspected by the police. [Citation.] (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051-1052, fn. omitted.)

Bukhari relies on several factors in arguing the second photo lineup was unfair in this regard. First, he notes the police conducted that lineup differently than the first one in that instead of showing Parra all the photos at the same time, in six pack form, they showed him the photos one at a time. But we see nothing about this procedure that would make it impermissibly suggestive. Bukhari confuses this procedure with the single-photograph procedure criticized in Manson v. Brathwaite (1977) 432 U.S. 98, but the two procedures are not even comparable, much less, analogous. Showing a witness but one photo is orders of magnitude more suggestive than showing him several photos in serial fashion. (See People v. Brandon, supra, 32 Cal.App.4th at pp. 1041, 1052 [rejecting claim that lineup was impermissibly suggestive because witness picked defendants picture from several photos that were shown to her one at a time].)

Moreover, the use of a more recent photo of Bukhari in the second lineup diminished the likelihood the first lineup tainted the second one. In light of the differing photos, and given that Parra failed to identify anyone in the initial lineup, we are not inclined toward Bukharis position that Parra picked him out the second photo array simply because he had already seen a photo of him in the original lineup. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1224 [fact that the defendants appearance differed in subsequent lineups cited as factor militating against a finding lineups were impermissibly suggestive].)

Nor are we taken with Bukharis claim that the admonishment Parra received before the second lineup was impermissibly suggestive. The detective who conducted the lineup testified he read Parra an admonishment form that we read to everybody that were going to show photos to. Asked to recall its contents, the detective explained, Its pretty much a form that states, Youre about to be shown photographs in an effort to identify a suspect or suspects in your case. Basically, if you see that person, point them out. If you dont see that person, then, obviously, let me know. Dont point them out.

Bukhari complains the admonishment failed to inform Parra (1) he was not to assume a suspect would be pictured in the lineup, (2) he was not required to identify anyone, and (3) exoneration of the innocent is just as important as identification of the guilty. Citing People v. Cunningham, supra, 25 Cal.4th 926, Bukhari suggests the disclosure of such information is required to ensure the fairness of a photographic lineup. But Cunningham does not say that. While the witness in Cunningham happened to have been informed of this information, and the Supreme Court cited this fact in finding the lineup in question there to be reliable, the court did not give any indication this or any other particular language is required as part of a prelineup admonishment. (See id. at p. 990.) Therefore, it is of little consequence that our record does not contain evidence that Parra was given the exact admonishment that was given to the witness in Cunningham.

That brings us to a broader and perhaps more fundamental point, i.e., we do not know everything that the detective told Parra prior to the second lineup. It readily appears that during his trial testimony, the detective did not have the admonishment form that he read to Parra. Consequently, he was required to paraphrase when asked about the forms contents. That being the case, we cannot impugn defense counsel for failing to challenge the wording of the admonishment. For all we know, defense counsel had seen a copy of the admonishment form and it was beyond reproach. If that were the case, it would certainly explain counsels failure to make an issue out of it at trial. Suffice it to say, the record, as it stands, does not support the notion that Bukhari was in any way signaled out before Parra identified him.

Therefore, Bukhari has failed to prove the second lineup violated his due process rights or his attorney was ineffective for failing to challenge the lineup. No constitutional infringement has been shown.

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] As Bukharis counsel conceded at oral argument, his position would preclude a true finding on a Penal Code section 12022.53, subdivision (b) enhancement unless the firearm were actually recovered (or the defendant had been unfortunate enough to victimize a firearm expert). We find nothing in law or logic to support that position.