P. v. Costello

Filed 8/1/07 P. v. Costello 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, James A. Stotler, Judge. Affirmed.

Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

A jury convicted James Scott Costello of the second degree murder of Melanie Eggleston (Pen. Code,  187, subd. (a)) and found true the allegation he discharged a firearm in committing the murder (id.,  12022.53, subd. (d)). The trial court found that Costello had one prior serious felony conviction (id.,  1192.7, subd. (c)(1)) and sentenced Costello to an indeterminate term of 55 years to life in state prison with the possibility of parole.

We affirm. We conclude (1) the trial court did not err by excluding certain testimony of witness Barbara Patterson; and (2) Costellos trial counsel was not ineffective for deciding not to a call Jamie Guile[1] to testify and for not requesting pinpoint instructions on third party culpability.

Facts

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

I. Prosecution Evidence

On the morning of April 22, 2003, John Ting, the manager of the Guest House Inn, a motel in Garden Grove, found Eggleston dead on the floor of the room she had rented seven days earlier. There had been no maid service to the room for three days because a do not disturb sign had been posted on the door.

Ting left the room and called the police. Garden Grove Police Officers Harris, Denk, and Tucker were dispatched to the motel in response to the call. As they entered the room, they saw Egglestons body on the floor, covered by a bedsheet. Her head lay in a foot-wide pool of blood that had emanated from the area of her nose and mouth. Her right arm lay across her body, her hand was draped across her face, and her right leg appeared to be broken.

Homicide investigators Elaine Jordan and Orlonzo Reyes arrived at the motel and sealed off the room. Jordan searched the room and found no evidence of forced entry and no personal items of the victim other than the clothing she was wearing. The room had been wiped clean of fingerprints, the trash can was empty, the telephone was missing its faceplate, and the telephone receiver was backwards on the cradle. Bedsheets, mattress pad, blankets, pillows, and comforter were missing, as were the rooms ice bucket, soap, drinking cups, ashtrays, and television remote control. The only personal items the officers found in the room were a razor behind the toilet, a cigarette butt behind the bed, and a white pill on the floor.

The officers could not immediately identify the body. The motel registration card showed the room had been registered in the name of Judy Clem, driving a gold Ford Explorer, license plate number 3NVR131. On the back of the registration card was a signature for Jim Contill.

On April 17, Costello, using the James Contill name, had registered as Egglestons guest and had obtained two key cards for her room. Debra Bastian, a longtime resident of the Guest House Inn, had seen Costello at the motel one day in April 2003 and noticed he was carrying a black gun on his person in what looked like a holster.

The investigators obtained the drivers license photograph for Judy Clem, but it looked nothing like Eggleston. The investigators determined the owner of the gold Ford Explorer was Denise Terbush and contacted her. Terbush told them the victim might be Eggleston. The investigators obtained Egglestons drivers license photograph and preliminarily identified her as the victim. Fingerprints confirmed Eggleston was, in fact, the victim.

On April 23, 2003, Garden Grove Police Officer Jenny Wilson, acting on a hunch, went to a nearby motel called the West Garden Inn to see if Terbushs gold Ford Explorer was there. It was. Wilson and several officers and investigators situated themselves around the motel and waited. A short while later, Wilson stopped the Explorer as it started to drive out the motel driveway onto the street. Costello and a woman stepped out of the Explorer and were detained.

Detective Jordan executed a search warrant for Costellos room at the West Garden Inn. She found womens clothing, a comforter, a mattress pad, sheets, two Guest House Inn key cards, and towels and washcloths from the Guest House Inn. On the bed, Jordan found a rifle and a Smith and Wesson nine‑millimeter handgun. The handgun later was determined to be the murder weapon and was found to have traces of Costellos DNA.

The gold Explorer was searched at the Orange County Sheriffs crime lab. In it were found items taken from the Guest House Inn, including an ice bucket, plastic cups, five ashtrays, a bar of soap, a television remote control, a telephone faceplate, and a key card. Also found in the Explorer were a gas bill addressed to Costello, a pair of womens sneakers, a roll of toilet paper, a pillow and pillow case, a white and pink camisole, cosmetics, a TV guide for April 12 through 18, 2003, a pair of womens slacks, a velvet band, a hairbrush with blond hairs in it, a womans purse, a bottle of purple nail polish appearing to match the color found on Egglestons nails, and various other items. Inside the purse was a nine‑millimeter Luger bullet.

Garden Grove Police Detective Frank Hutchinson interviewed Costello on April 23, 2003. At first, Costello claimed he had never been to the Guest House Inn and denied knowing Eggleston. He later admitted knowing her, but denied having been with her on April 18, 19, or 20. Forensic scientist Danielle Wieland testified that sperm taken from Egglestons vagina matched Costellos DNA profile. There were no signs of trauma to Egglestons vagina or anal area.

Forensic pathologist Joseph Halka performed an autopsy on Eggleston on April 23, 2003. He testified a bullet entered to the right of her nose, passed her mouth, and lodged in the nape of her neck at the spine. Bleeding blocked the air passages, causing Eggleston to die of asphyxiation in about 20 minutes. Red burn marks below Egglestons eyes were caused by gas and oil emitted from a gun fired at close range. Halka testified Egglestons leg was broken shortly before her death. Egglestons blood contained methamphetamine, amphetamine, and .05 percent blood alcohol.

DNA extracted from the razor found in Egglestons room at the Guest House Inn included DNA from Costello. DNA extracted from the cigarette butt found in the room came from a woman, but not Eggleston.

The bullet recovered from Egglestons body was fired by the nine‑millimeter handgun found in Costellos room at the West Garden Inn. When the gun was fired, it was six to 24 inches away from Eggleston. DNA extracted from the slide of the handgun was determined to have come from Costello.

The gun used to killed Eggleston had been stolen by Jamie Guile in March 2003. Guile was in custody when the police interviewed her. She wanted to be released from custody in exchange for providing information.

II. Defense Evidence

A. Costellos Testimony

Costello testified. He denied killing Eggleston. He claimed that when he found her body in the motel room, he panicked and removed all evidence of his presence at the Guest House Inn so he would not be blamed for her murder.

At the beginning of April 2003, Costello was living in an apartment in Anaheim with Terbush (the owner of the gold Explorer) and her daughter Renee. Terbush and Eggleston were friends, and Costello used to date Eggleston. Costello had to move because he had a dog and the apartment complex did not allow pets.

While living in the apartment with Terbush, Costello met her friend, Jamie Guile. When they first met, Costello and Guile discussed guns. Costello showed Guile his .38‑caliber revolver, and Guile showed Costello her nine‑millimeter handgun. They agreed to trade guns.

During the move from the apartment, Terbush was arrested for violating her Proposition 36 probation and was placed in custody. Costello resumed his relationship with Eggleston and began to stay with her at the Guest House Inn. Eggleston drove Terbushs gold Explorer, while Costello rode a Harley‑Davidson motorcycle he had bought with inheritance money.

On Thursday, April 17, 2003, Guile and two men approached Costello and Eggleston in the parking lot of the apartment complex where Costello had been living. The men had shaved heads and tattoos. Costello recognized the type of person from his days in jail and thought they might be skinheads. Guile told Costello she had come to help him move. Thinking Guile and the two men had come to rob him, Costello placed the nine‑millimeter handgun in his waistband and said, okay, lets go do some moving. Guile claimed to have forgotten something and left with the two men. Eggleston remarked to Costello, that broad is crazy. On Friday, April 18, Costello gave Eggleston the nine‑millimeter handgun for protection.

In the afternoon of Friday, April 18, 2003, Costello went to a bar to meet a childhood friend, Tim Saboe, and his girlfriend, Gloria. Eggleston separately arrived at the bar. The four had drinks together at the bar and eventually ended up in the room at the Guest House Inn. Costello left to buy some methamphetamine and planned to meet Eggleston, Saboe, and Gloria later that night at the Coronado bar.

Nobody was in the motel room when Costello returned later that evening. A man named Shaun Croul, who also lived at the Guest House Inn, knocked at the door. At first, Croul asked for a cigarette, but then asked to borrow money to bail his girlfriend out of jail. Costello agreed to give him some money in exchange for a rifle.

After trying to meet his drug connection, Costello went to the Coronado bar, arriving about 1:30 a.m. on Saturday, April 19, 2003. Eggleston and the others were not there. The barmaid relayed a message from Eggleston for Costello to meet her at the Lemon Twist bar about a mile away. Costello arrived at the Lemon Twist bar about 1:45 a.m. The barmaid there told him Eggleston had grown tired of waiting for him and said she would meet him at the motel room. Costello left the Lemon Twist bar around 2:00 a.m., bought a frozen lasagna at a supermarket, and returned to the motel room.

Costello arrived at the motel room about 3:00 a.m. The lights were on, and Eggleston was lying on the floor. Costello thought she had passed out. When he tried to rouse her, he noticed blood coming out of her nose. She had no pulse and no breath and was cold. Costello realized Eggleston was dead. He cried, then thought about what he should do: He concluded he could not call the police because he had three strikes and feared going to prison for life. He decided he had to remove everything of his from the room and leave. He placed his belongings onto the bed, wrapped up the bedding to form a bindle, threw the bindle with his belongings over his shoulder, walked to the parking lot, and threw the bindle into the gold Explorer. He thoroughly wiped down the room to remove all traces of his presence and drove off.

Costello went to the Tahiti Motel, where he contacted his friend, Charles Wilson. Costello told Wilson what happened and asked him to move his motorcycle from the Guest House Inn. Costello then went to Saboes house, where he confronted Saboe about what happened to Eggleston. Saboe said that Eggleston had become tired of waiting and said she was going back to the motel room.

About 10:00 a.m. on Saturday, April 19, 2003, Costello returned to the motel room to get his dog. He stayed with friends the rest of the weekend. On Wednesday, April 23, Costello had a friend rent him a room at the West Garden Inn. A woman named Lana Gregors went to the West Garden Inn with Costello. Gregors was in the gold Explorer with Costello when he was arrested on April 23.

Before getting the room at the West Garden Inn, but after leaving Egglestons body at the Guest House Inn, Costello was arrested by Fountain Valley police officers while riding his motorcycle with his dog. He was bailed out of jail within six hours. He never told the police about Eggleston.

B. Other Defense Witnesses

Saboe, a felon in custody, testified he had been a friend of Costello for 30 years. Saboe testified he had been at the Coronado bar with his girlfriend (Gloria Falcon) and Eggleston on Friday night, April 18, 2003. Saboe noticed that Eggleston was carrying a handgun. After they had been at the Coronado bar for a couple of hours, they decided to leave because Costello had not shown up. As Saboe and his girlfriend were leaving the parking lot on his motorcycle, Saboe saw Eggleston talking to a homeless man. About 1:00 a.m., Saboe received a telephone call from Eggleston asking if Costello was at Saboes house.

In the morning on Saturday, April 19, Costello appeared at Saboes house with his friend, Wilson. Costello was upset and told Saboe he had found Eggleston dead in the motel room.

Barbara Patterson worked at the Sundown Bar and knew Costello, Eggleston, and Terbush. Patterson testified that on April 5, 2003, Guile came into the Sundown Bar and asked Patterson to go with her to Costellos residence. Patterson agreed and they left the bar in separate cars to drive to Costellos residence. Patterson followed Guile onto the freeway, but then ditched her because she never had any intention of going with her to Costellos house.

Barbara Patterson testified that Eggleston walked into the Sundown Bar sometime after 9:00 p.m. on Friday, April 18, 2003, looking for Costello. Eggleston explained she wanted Costello with her because she had a large amount of drugs and money and did not want to be alone. A man sitting at the bar named Joe Nardon might have overheard Eggleston. Eggleston left after about 10 minutes. Nardon and a woman named Vicki left soon thereafter.

On Monday, April 21, 2003, Costello telephoned Barbara Patterson and said he needed to talk to someone. She was at the residence of her sister, Monica Patterson. Costello went to Monica Pattersons residence, where he told Barbara and Monica that Eggleston was dead. Costello was upset. He said he did not kill Eggleston and asked Barbara and Monica to believe him. Monica Patterson testified Costello said he was thinking about turning himself in. Barbara Patterson asked Costello to leave, and he complied. Monica Patterson testified she did not call the police because Costello had said he might turn himself in and because she believed his claim of innocence.

Discussion

I. Exclusion of Barbara Pattersons Testimony
of Threats Made by Guile

Costello sought to elicit testimony from Barbara Patterson that on April 5, 2003, Guile had threatened to shoot her unless she told Guile where Costello lived. Costello argues the trial court abused its discretion by sustaining the prosecutions objection to such testimony on the ground it would be irrelevant. We conclude the evidence was irrelevant, but if relevant, its exclusion was not prejudicial.

Costello argues the testimony was relevant to proving third party culpability; that is: The fact that [Guile] was willing to commit an assault with a deadly weapon to find out where Costello lived, together with the fact that she and the skinheads very likely were prepared to rob Costello and [Eggleston] at the apartment, provides the circumstantial evidence that Guile and the skinheads learned that Costello and [Eggleston] were staying at the Guest House Inn, went there, and killed [Eggleston] to obtain the drugs and money that w[ere] there.

To be admissible, the third‑party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third partys possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (People v. Hall (1986) 41 Cal.3d 826, 833.) Third party culpability evidence should be treated like any other evidence: if relevant, it is admissible (Evid. Code,  350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (id.,  352). (People v. Hall, supra, 41 Cal.3d at p. 834; see People v. Lewis (2001) 26 Cal.4th 334, 372.) We review for abuse of discretion the trial courts rulings on the admission of third party culpability evidence. (People v. Lewis, supra, 26 Cal.4th at pp. 372-373.)

The circumstantial evidence linking Guile to Egglestons murder was quite thin. The only evidence presented implicating Guile was of motive and opportunityGuiles motive was to steal money and drugs, and knowing where Costello resided provided her the opportunity to kill. No other direct or circumstantial evidence was presented linking Guile to the crime. Indeed, the evidence showed that Guile had given Costello the gun later used to murder Eggleston in a gun swap and that he had removed the gun from the room after Eggleston was murdered. Eggleston was not robbed: Costello removed her purse from the room and testified no property was missing from the room when he found Egglestons body.

We reject Costellos contention that excluding Barbara Pattersons testimony deprived him of his constitutionally protected right to present a defense, thereby requiring either automatic reversal or harmless error analysis under Chapman v. California (1967) 386 U.S. 18. As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. (People v. Hall, supra, 41 Cal.3d at p. 834.) A criminal defendant does not have a constitutional right to present all relevant and favorable evidence; rather, a defendant has a constitutional right to present all relevant evidence of significant probative value to his defense. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) If relevant, Barbara Pattersons excluded testimony did not have significant probative value.

Excluding Barbara Pattersons testimony of Guiles threats, if relevant, was not prejudicial because it was not reasonably probable the jury would have reached a more favorable outcome absent the asserted error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of Costellos guilt was strong. Barbara Pattersons excluded testimony at most would have added some evidence that Guile had a motive and perhaps an opportunity to commit the crime. The excluded testimony was hardly enough to sway a reasonable jury to ignore the evidence of guilt and conclude Guile or one of her cohorts, not Costello, committed the murder.

II. Ineffective Assistance of Counsel

Costello contends his trial counsel was ineffective by failing to call Guile as a witness and by failing to request third party culpability jury instructions. Costello raised the ineffective assistance of counsel claim first in a People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion and later in a motion for a new trial. We conclude the trial court did not err by denying those motions.

A. Background

After the jury rendered its verdict and before sentencing, Costello made an oral Marsden motion asking the trial court to discharge his appointed counsel. Costello asserted he was dissatisfied with his attorney for several reasons, including counsels decision not to call Guile as a witness. Costello informed the court that Guile had told the police they got the wrong person in custody, that she knows who the shooter is; but this was never brought up in court.

The trial court reviewed the transcript of the police interview of Guile, conducted while she was in custody, and commented: Theres some conflicting statements in here. Its hard to tell whether Guile is saying on page 2 of 5 whether she actually heard . . . this Ron Diaz bragging about him having killed [Eggleston] because I cant tell whether its hearsay or directly spoken to her. [] And then it says same page, first he, meaning Diaz, tried to say that she killed herself so Guile said that she just walked away. And then theres this later reference on page 3 of 5, third paragraph, Guile said Diaz never said he actually did it, but did say he was the last one to see her alive and made it sound like he did it. So . . . Ive read and considered the report.

Defense counsel explained he had listened to the audiotape and watched the videotape of the police interview and Guile was all over the map trying to get out of custody. Defense counsel stated that Guile herself would have been of no use to the defense in our opinion.

The court denied the Marsden motion, stating: I read the police report. I dont believe Jamie Guile actually said that the gentleman she referred to in the police report actually confessed to the homicide. There are conflicting statements in there. There is certainly motivation by her to get out of custody. She said, give up three, and you go free. Meaning, incriminate three people, and you go free. She was very desirous of getting out of custody. Theres a lot of speculation involved in the Jamie Guile issue, but in any event [defense counsel] explored that to the best of his ability and found out there was no substance there. [] And I think you have to allow counsel strategical calls in this regard in terms of assessing the case in terms of what is credible evidence and what is not. And hearing what Mr. Watson said, I saw the tape of the Jamie Guile interview, and he felt this witness was not credible. So again theres no ineffective assistance of counsel there.

Soon thereafter, defense counsel, at Costellos direction, orally moved for a new trial on the ground of ineffective assistance of counsel. Counsel argued he was ineffective by failing to call Guile as a witness. In response, the prosecutor stated that Guile was on the prosecutions witness list and could have offered testimony unfavorable to Costello. The prosecutor made a tactical decision not to call Guile because there was some stuff that would have clouded issues.

The trial court denied Costellos motion for a new trial. The court concluded defense counsel was not ineffective for failing to call Guile as a witness because her testimony might have been unfavorable to the defense and perhaps would have presented evidence that she gave the gun to the defendant.

B. Legal Standards

We review both the denial of a Marsden motion and the denial of a motion for a new trial under an abuse of discretion standard. (People v. Staten (2000) 24 Cal.4th 434, 466 [denial of motion for a new trial]; People v. Memro (1995) 11 Cal.4th 786, 856‑857 [denial of Marsden motion].)

To prevail on a claim of ineffective assistance of counsel, the defendant must prove: (1) his or her attorneys representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorneys deficient representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a probability sufficient to undermine confidence in the outcome. (Ibid.)

We reverse on direct appeal for ineffective assistance of counsel only when the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions. (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 [When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation].)

C. Application

1. Defense Counsel Articulated a Rational Tactical Reason for Not Calling Guile as a Witness.

The record in this case does not demonstrate there could be no rational tactical purpose for defense counsels decision not to call Guile as a witness. At the hearing on the Marsden motion, defense counsel explained that Guile had made inconsistent statements to the police and was trying to use her testimony as a means to get out of custody. Defense counsel heard the audiotape and watched the videotape of Guiles police interview, and concluded Guile would have been of no use to the defense in our opinion. After reading the transcript of Guiles police interview, the trial court agreed that Guile had made inconsistent statements to the police. Although, as Costello points out, the fact Guile gave the murder weapon to him was established through other evidence (including his own testimony), Guiles testimony might have emphasized that fact.

Costello cites People v. Jackson (1991) 235 Cal.App.3d 1670 and In re Hall (1981) 30 Cal.3d 408 in support of his claim that his trial counsel was ineffective for not calling Guile as a witness. The issue in People v. Jackson, supra, 235 Cal.App.3d 1670, was whether third party culpability testimony was admissible, not whether counsel was ineffective for failing to use it.

In In re Hall, supra, 30 Cal.3d 408, 427‑428, the Supreme Court concluded defense counsel was ineffective because he failed to interview potential alibi witnesses and failed to contact several people who could have assisted in implicating a third party in the crime. (Id. at pp. 428‑429.) The court found counsels explanation for his tactics to be difficult to justify and described counsels failure to produce evidence implicating the third party as based largely on his failure to investigate. (Id. at p. 428.)

Here, in contrast, Costello does not contend his trial counsel failed to diligently investigate. The issue here is exercise of judgment in trial tactics. Defense counsel heard the audiotape and watched the videotape of the police interview of Guile, and had to exercise judgment in making the difficult decision whether to call her as a witness. Other defense counsel might have exercised judgment differently. But since Costellos trial counsel had rational tactical reasons for not calling Guile as a witness, we will not second‑guess counsels decision.

In sum, defense counsel had a rational tactical reason for his decision not to call Guile, and his reason demonstrate[d] that counsel was reasonably competent and acting as a conscientious, diligent advocate. (People v. Osband (1996) 13 Cal.4th 622, 700.) The trial court therefore did not abuse its discretion by denying Costellos Marsden motion and motion for a new trial.

2. Costello Was Not Entitled to a Pinpoint Instruction on Third Party Culpability.

Costello also argues his trial counsel was ineffective for failing to request a pinpoint jury instruction on third party culpability[2] and failing to request CALJIC No. 2.91. However, [a] party is not entitled to an instruction on a theory for which there is no supporting evidence. (People v. Memro, supra, 11 Cal.4th at p. 868.) Costello did not present enough evidence linking any particular person to Egglestons murder to warrant a third party culpability instruction. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Costello offered only surmise and speculation that Guile or her skinhead friend or Joe Nardon or the homeless man in the parking lot might have killed Eggleston.

Moreover, as Costello concedes, third party culpability, like identification or alibi defenses, does not admit the essential elements of the crime, but negates an element. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 1601.) For that reason, the general instructions on credibility and burden of proof are sufficient to inform the jury that the prosecution has the burden of proof and that the jury should acquit the defendant if the jury harbors a reasonable doubt the defendant committed the crime. (See People v. Alcala (1992) 4 Cal.4th 742, 803.) The trial court here instructed the jury on believability of witnesses (CALJIC No. 2.20), discrepancies in testimony (CALJIC No. 2.21.1), weighing conflicting testimony (CALJIC No. 2.22), sufficiency of testimony from one witness (CALJIC No. 2.27), and reasonable doubt and burden of proof (CALJIC No. 2.90). Defense counsel argued that Guile, or any one of several persons, might have killed Eggleston. The trial courts instructions were sufficient to inform the jury that the prosecution had the burden of establishing identity, and that defendant should be acquitted in the event the jury harbored a reasonable doubt on the issue of identity. (People v. Alcala, supra, 4 Cal.4th at p. 803.)

CALJIC No. 2.91 concerns the burden of proving identity based solely on eyewitnesses. The Use Note to it states, [o]nly use this instruction where the evidence of identification includes the testimony of eyewitnesses. (Use Note to CALJIC No. 2.91 (Fall 2006 ed.) p. 100.) Instructing the jury with CALJIC No. 2.91 would have been improper because no eyewitness testimony was presented at trial in this case.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] Costello uses the name Guile, while the Attorney General uses the name Gile.

[2] Costello argues his trial counsel should have proposed this instruction: Evidence has been offered that a third-party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is required only that such evidence raise a reasonable doubt in your minds of the defendants guilt.