P. v. Walker

Filed 8/27/07 P. v. Walker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Craig E. Veals, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Isaiah Mark Walker (Walker) appeals from the judgment entered following a jury trial which resulted in his conviction of attempted willful, deliberate, premeditated murder (Pen. Code, 664/187, subd. (a)),^[1]during the commission of which he personally and intentionally discharged a firearm, proximately causing great bodily injury ( 12022.53, subds. (b), (c) & (d)), and the finding he committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)). The trial court sentenced Walker to 40 years to life in prison.

Walker contends he was denied his right to the effective assistance of counsel because his counsel failed to make a timely objection to a photographic lineup and failed to call as a witness an expert on eyewitness identifications. We ffirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The Prosecutions Case.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 2:50 p.m. on August 11, 2005, Eric Cole (Cole) was walking on the sidewalk on 94th Street in a residential area near the intersection of 94th and Denker. Walker was walking toward Cole and the two men passed each other without speaking. When Cole then heard Walker call out in a loud voice, Hey, hey, Cole stopped and turned around to see Walker approaching him. Cole noted Walker was wearing a short-sleeved white T-shirt, navy blue dickie shorts, and new white Adidas tennis shoes with the laces crossed in an unusual way.^[2]

When Walker was approximately two feet from Cole, he asked Cole if he knew the girl who lived in a particular house. After Cole stated he did not, Walker said, She should have been here, then turned and began to walk away. Cole continued on his way until he heard what sounded like chanting, or someone behind him repeatedly whispering, Hey, hey. Cole turned around and saw Walker walking approximately 12 feet behind him. Walker asked Cole where he was from and Cole told him he belonged to the Rollin 90s Crips. Cole had been jumped into the gang three or four months earlier when he succumbed to pressure by gang members to join. Walker responded he was from the Rollin 60s Crips, a gang friendly with the Rollin 90s. The two men then came face-to-face and did a neighborhood Crips handshake, which took approximately 15 seconds. As the men shook hands, Cole saw that Walker had really dark patches, like tattoos, on his left and right forearms. Cole told Walker his gang name was Baby Leprechaun and Walker told Cole what his gang name was. Cole could not quite understand Walker at first, since he was mumbling. However, Cole understood that Walkers gang name began with an I and ended with a C or K.

The two men parted and, as Cole proceeded to walk up the street, Walker ran across the street, got into a car and began to drive away. Walker then pulled a u-turn and drove back toward Cole. From his car, Walker threw . . . the neighborhood Crips sign and Walker put it up back. Walker then pulled up to the curb and stopped his car at the house in front of Cole, got out of the car and asked Cole if he had a cell phone. Cole handed his cell phone to Walker, who opened it and asked what area code it was in. After Cole told Walker the phone had a 562 area code, Walker flipped the phone shut, handed it back to Cole and began to walk[] backwards until he was approximately nine feet from Cole.

Walker reached into his pocket, stated he was from an enemy gang, the 8-Trey Gangsters, and said, Fuck 90s. Walker then pulled a black, .38 special handgun from his pocket and aimed it at Cole. Cole, believing he was about to be killed, put his hands in the air and closed his eyes. Cole heard three shots fired, then fell to the ground. He opened his eyes, saw smoke coming from the gun, closed his eyes again and heard more shots fired. Cole opened his eyes again and saw that Walker was aiming the gun at Coles head. Cole waited until he heard the gun click, then put his hand and forearm in front of his face. A bullet hit Cole in the forearm. After hearing more clicks from the gun, Cole opened his eyes, looked up and saw Walker running toward his car. After Walker drove off, Cole began to feel pain. He yell[ed] for help [and] that [he had] been shot. In total, Cole suffered five gunshot wounds.

When police arrived, Cole told them he had been shot by a member of the 8-Trey Gangsters. After being transported to the hospital, Cole gave police officers a description of Walker and told them the shooter had a moniker which started with an I and ended with a C. When police then showed Cole a group of six photographs, Cole identified a photograph of Walker and stated he was positive Walker was the man who had shot him. Cole claimed he did not choose the photograph of Walker because his was the only photograph in the lineup depicting a man with his hair in a ponytail. He chose the photograph of Walker because it depicted his [Walkers] face.^[3]When officers showed Cole the photographic lineup, Cole remembered Walker had stated his gang name was Irocc.

A spent bullet fragment recovered from Cole was most consistent with a .38 special or a .357 magnum.

Three days after the shooting, at approximately 6:00 p.m. on August 14, 2005, Los Angeles Police Officer Michael Estrada (Estrada) participated in Walkers arrest. Estrada and his partner found Walker sitting on the front porch at 8317 South Western, approximately one-half mile from where the shooting had occurred.

On August 15, 2005, Los Angeles Police Detective Todd Burns (Burns) obtained a warrant to search Walkers residence at 818 East 85th Street. In the top dresser drawer in Walkers bedroom, police officers found a spent .32 shell casing and a live .32 bullet. From inside a shoe box in Walkers room, officers recovered a live round .22 caliber bullet. A .38 special live bullet was found in a closet in the hallway of the house. From under the bed in Walkers bedroom, officers recovered a pair of white Adidas tennis shoes. Photographs recovered from Walkers residence depicted individuals flash[ing] 8-Trey Gangsters hand signs.

A search of the area surrounding where the shooting had occurred revealed no casings which would have been expelled from a semi-automatic weapon.

At the preliminary hearing held on November 23, 2005, Cole identified Walker as the man who had shot him. Cole noted Walker had a little scar under his eye and that he initially had a little bit of doubt as to whether Walker was the shooter because his skin had been much darker at the time of the shooting. However, Cole indicated the shooting had occurred in the summertime and peoples skin complexions tend to change.

When, at trial, the prosecutor asked Cole if he had any doubt Walker was the man who had shot him, Cole responded, No.

Los Angeles Police Officer Louis Marin (Marin) is assigned to the 77th Street Division Gang Enforcement Detail. Prior to the attempted murder of Cole, Marin had met Walker, who identified himself as Irocc, on approximately 20 different occasions at various locations known as 8-Trey Gangsters strongholds. Walker had 8-Trey Gangsters tattoos on his forearms. Marin believed Walker was the only member of the 8-Trey Gangsters whose moniker was Irocc.

Marin, a gang expert, estimated between 500 and 600 individuals belong to the 8-Trey Gangster Crips. The Gangster Crips and the Neighborhood Crips, including the Rollin 60s Neighborhood Crips and the Rollin 90s Neighborhood Crips, are bitter enemies. The animosity is so great that a member of the Gangsters would be willing to shoot a member of the Neighborhood Crips simply to intimidate the rival gang. Marin had personally known of instances where 8-Trey Gangster Crips had murdered members of rival gangs. According to Marin, street gangs thrive [on] fear and intimidation. To work his way up in the gang hierarchy, a gang member must usually commit crimes in the gangs interest. These crimes can include robbery, the sale of narcotics and shootings. Commission of such crimes brings respect from other gang members.

b. Defense Evidence.

Juvenile Hall Detention Officer Paul Escamilla (Escamilla) testified Walker was being housed at Sylmar Juvenile Hall where Escamilla works. On November 19, 2005, Walker was involved in a fist fight. During the altercation, Walker was struck in the face.

Los Angeles Police Officer Burns interviewed Cole after he had been taken to the hospital. Cole told Burns the individual who shot him hangs out at the corner of 94th Street and Normandie. When shown what appeared to be a booking photograph of Walker, Burns stated he could not recall any differences in Walkers appearance between the day he was arrested and the way he appear[ed] in [the] photograph.

CONTENTIONS

Walker contends he was denied his Sixth Amendment right to the effective assistance of counsel because his counsel failed to make a timely objection to the photographic lineup and failed to call as a witness an expert on eyewitness identifications.

DISCUSSION

To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citation.] (People v. Benavides (2005) 35 Cal.4th 69, 92-93; see Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.) [P]rejudice must be affirmatively proved. [Citations.] It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [Citations.] (People v. Cox (1991) 53 Cal.3d 618, 656.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) As a reviewing court, we defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation] and there is a strong presumption that counsels conduct [fell] within the wide range of reasonable professional assistance. [Citation.] (People v. Hinton (2006) 37 Cal.4th 839, 876.)

a. Counsels failure to object to the photographic lineup before or during trial did not amount to ineffective assistance.

After the jury delivered its verdicts, counsel for Walker made a motion for a new trial asserting there was a reasonable doubt as to whether Walker was the individual who committed the attempted murder of Cole. Counsel argued the photographic lineup had been impermissibly suggestive in that Walker was the only person who had a pony tail. Counsel urged this made the lineup egregious[ly] unfair.

After hearing further argument, the trial court denied the motion. The court noted there had been substantial contact between [Walker] and [Cole] before the shooting. . . . [] So, [Cole] had more than ample opportunity to see the face of his assailant and [had] noted some [of his] features among which . . . was the pony tail. . . . [] About two hours later when [Cole] was at the hospital, he identified the defendant with very little hesitation. . . . And [Coles identification of Walker has] been rock solid ever since then. The court continued, Quite frankly, the identification was made here in this courtroom, there was no hesitation . . . . Yes there were some questionable aspects of it such as the business about the mark under the eye, which can be explained . . . . [T]here are numerous possibilities that come to mind such as smudging under the eye that was later on removed. [] But the fact of the matter is it was a rock solid identification, and the jurors heard all of them. [Defense counsel] cross-examined the witness on the issue of the pony tail. [Defense counsel] . . . argued that there was a suggestive component in the photographic lineup by virtue of that, and the jurors considered all of that. Walker contends his counsel was ineffective for failing to make a timely objection prior to or during trial to the improperly suggestive photographic lineup. He asserts counsels motion for a new trial based on the improper lineup was too little, too late.

A defendant bears the burden of showing an unreliable identification procedure. [Citation.] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 412; see People v. Gonzalez (2006) 38 Cal.4th 932, 942; People v. Yeoman (2003) 31 Cal.4th 93, 123.)

Our own review of the photographic lineup shows, although Walker is the only individual depicted with a visible ponytail, his facial features, coloring, weight, age and clothing are similar to those of the other men shown. In addition, each of the other suspects has either extremely close cropped hair or hair pulled tightly back into a ponytail which simply cannot be seen. Nothing in the lineup  caused [Walker] to stand out from the others in a way that would suggest [Cole] should [have] select[ed] him. (People v. Yeoman, supra, 31 Cal.4th at
p. 124.)

However, even if the photographic lineup had been improperly suggestive, it would not have rendered Coles identification of Walker as the shooter unreliable. Cole had ample opportunity to observe Walker. The incident occurred in broad daylight at approximately 2:50 p.m. During the encounter, Cole and Walker had three separate conversations. Their second conversation culminated in a face-to-face . . . neighborhood Crips handshake which took approximately 15 seconds. After being transported to the hospital shortly after the shooting, Cole gave police officers a description of Walker. Within approximately two hours of the shooting, Cole identified Walkers photograph from the photographic lineup and told the officers he was positive Walker was the man who had shot him. Although at the preliminary hearing held approximately three months after the shooting Cole qualified his identification, he nevertheless again identified Walker as the shooter. Finally, at trial, Cole, positively and without hesitation, identified Walker as the man who shot him.

On this record, Coles identification of Walker was reliable under the totality of the circumstances. (See People v. Ochoa, supra, 19 Cal.4th at p. 412.) Accordingly, counsels failure to object to the admission of the photographic lineup prior to or during trial did not render his performance ineffective; counsels failure to object to the lineup was reasonable under the circumstances and caused Walker no prejudice. (See People v. Benavides, supra, 35 Cal.4th at pp. 92-93.)

b. Counsels failure to call an eyewitness identification expert did not amount to ineffective assistance of counsel.

Relying on People v. McDonald (1984) 37 Cal.3d 351, 363-373 (McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914, Walker contends his trial counsel was ineffective for failing to call as a witness an eyewitness identification expert. In McDonald, the court determined the trial court committed prejudicial error when it excluded proffered expert testimony regarding eyewitness identifications. The McDonald court indicated that exclusion of such testimony in that matter undercut the evidentiary basis of defendants main line of defensehis attack on the accuracy of the eyewitness identificationsand deprived the jurors of information that could have assisted them in resolving that crucial issue. (Id. at p. 376.) The McDonald court did not consider whether counsel had been ineffective for failing to call as a witness an eyewitness identification expert.

In the present case, counsels decision not to present testimony from an eyewitness identification expert must be deemed a tactical move. With respect to evaluating [counsels] performance . . . , [m]erely tactical errors by counsel are [generally] not deemed reversible [citation], for the decisions of counsel in the midst of trial cannot be second guessed by the hindsight of an appellate court [citation]. [Citation.] Moreover, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. [Citation.] (People v. Cox, supra, 53 Cal.3d at p. 656, quoting Strickland v. Washington, supra, 466 U.S. at p. 690.) If the record on appeal 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 there simply could be no satisfactory explanation. (People v. Carter, supra, 36 Cal.4th at p. 1189.)

Contrary to Walkers assertion, the present case is not one based entirely on Coles unreliable identification of Walker bolstered by expert gang testimony. Much of Coles identification testimony was corroborated by independent evidence. Cole gave police a detailed description of Walker, including that Walker was wearing white Adidas tennis shoes which had been laced in an unusual manner. A pair of white Adidas tennis shoes was found under Walkers bed. Cole noticed Walker had dark spots, or tattoos, on his left and right forearms. Walker has gang tattoos on both his left and right forearms. Cole described the gun used by Walker as a .38 special. A live .38 special bullet was found in Walkers residence and a spent bullet fragment removed from Cole was most consistent with a .38 special or a .357 magnum. Immediately after the shooting, Cole told police officers he had been shot by a member of the 8-Trey Gangsters. Walker is a member of the 8-Trey Gangsters. After viewing the photographic lineup, Cole remembered Walkers gang name was Irocc. Walkers gang moniker is Irocc.

In addition, the present case does not present a situation where the witness was identifying a stranger based solely upon a single brief observation at a time of stress or excitement. (People v. McDonald, supra, 37 Cal.3d at p. 364; see also People v. Ochoa, supra, 19 Cal.4th at pp. 381-382 [At approximately midnight, defendant grabbed the victim from behind, knocked off her glasses and pushed her head down whenever she looked in his direction.].) The incident took place in daylight and, before the shooting, Cole and Walker had three seemingly innocuous conversations, the second of which ended in a face-to-face . . . neighborhood Crips handshake.

After hearing the evidence, the jury was instructed with CALJIC No. 2.91, that the burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged [and that] [i]f, after considering the circumstances of the identification and any other evidence in [the] case, [the jury had] a reasonable doubt whether [the] defendant was the person who committed the crime, [it] must give the defendant the benefit of that doubt and find him not guilty. The jury was also instructed with CALJIC No. 2.92, regarding factors to be considered in weighing eyewitness testimony. That instruction reads: Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness identification of the defendant, including, but not limited to, any of the following: [] 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 was subjected at the time of the observation; [] The witness 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 the witness; [] The cross-racial or ethnic nature of the identification; [] The witness capacity to make an identification; [] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [] The period of time between the alleged criminal act and the witness identification; [] Whether the witness had prior contacts with the alleged perpetrator; [] The extent to which the witness is either certain or uncertain of the identification; and [] Any other evidence relating to the witness ability to make an identification.

On this record, it cannot be concluded counsels tactical decision not to call an eyewitness identification expert was unreasonable. Cole, after having ample opportunity to observe Walker, identified him as the shooter on three different occasions. The identifications were corroborated by independent evidence. The jury was then thoroughly instructed on how to evaluate the identifications. Under these circumstances, trial counsel could have reasonably concluded the testimony of an eyewitness expert was not necessary. (See People v. Carter, supra,
36 Cal.4th at p. 1189 [If there is a satisfactory explanation for counsels tactical decision, any claim of ineffective assistance of counsel must be rejected.].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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

^[2] Cole explained, Normally you lace your shoes . . . from hole to hole. These shoes were laced one in one hole and skip two, three several holes, and then put it in there.

^[3] On cross-examination, defense counsel asked Cole, True, is it not, that you chose [photograph] No. 2 [of Walker] because the man had a pony tail and for no other reason; isnt that true? Cole responded, At that time.