PEOPLE v. STONE

Filed 2/21/08

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In these consolidated cases, defendant and appellant Steven Michael Stone appeals his jury-trial conviction for petty theft with a prior on the grounds of ineffective assistance of counsel and instructional error, and also seeks habeas relief on the basis of ineffective assistance of counsel. We deny defendants petition for writ of habeas corpus and affirm the judgment.

Procedural background

Following a preliminary hearing held on July 14, 2006, appellant was charged by an information filed on July 21, 2006, and amended on September 26, 2006, with petty theft with a prior theft felony, in violation of Penal Code sections 484, subdivision (a) and 666.[1] The information further alleged that appellant had suffered two prior serious or violent felonies, that he had served two prior prison terms, and that he was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4). On July 24, 2006, appellant entered a plea of not guilty and denied the special allegations. The trial court granted a defense request to bifurcate the trial on the prior convictions. The parties delivered opening statements to the jury on September 27, 2006. The jury found appellant guilty of theft by larceny on October 3, 2006. A court trial was held on the allegations, and the trial court concluded appellant had suffered a prior strike and two prior prison terms. At a sentencing hearing on November 16, 2006, the trial court denied appellants motion pursuant to section 17, subdivision (b) to designate the offense of conviction a misdemeanor, as well as his motion pursuant to section 1385 to strike his prior strike conviction. Also, the trial court denied probation and sentenced appellant to the lower term of two years and eight months on the offense of conviction, plus a consecutive two years for the prior prison terms, for a total sentence of four years and eight months imprisonment. Appellant filed a timely notice of appeal on November 28, 2006.

Factual Background

Randy Shields testified that he had worked at Brunos Foods in Lakeport, Lake County, for 23 years. During that time, he has had between thirty and fifty encounters with shoplifters in the store. Around 10:00 a.m. on November 1, 2005, Shields attention was caught by a man entering the store because he just didnt seem like he was there to grocery shop. To Shields, the man looked suspicious because he wore lots of tattoos and a long, long coat, big pockets and just things you kind of look for as far as a shoplifter would go. Shields identified defendant in court as that same individual.

Shields stated that defendant walked past him down the aisle to the back of the store where the refrigerated items are kept. Shields followed defendant to the end of the aisle and just kind of stood there like I was doing what I normally do at work and I just observed him for a few moments. Shields watched as defendant took a container of milk off the shelf and walked down to the beer section. Defendant placed the bottle of milk next to his pocket in his long jacket. Shields thought defendant was sizing it up to see if would fit in his pocket and was pretty sure it was going to go in his pocket. However, defendant went back and exchanged the bottle of milk for another of a different size. Shields followed defendant as he walked through the store to the bakery/deli area with the bottle of milk in hand. Defendant walked about in front of the donuts, then grabbed a white donut bag and put some donuts in there. Shields continued to observe defendant as he paced back and forth a little bit, looked like maybe he was going to sit in a little seating area that we have and probably eat them. And I was just watching to see if thats what he was going to do without paying for them. And he didnt, he turned and went out the door.

Shields followed defendant out of the store and made contact with him. Shields was within three feet of defendant and asked him if he had forgotten to pay for something. Defendant dropped the bag of donuts. Shields took hold of defendants arm and said, Youll have to come back inside. Defendant said Get your fucking hands off me, pulled his arm away and ran off. Shields started to pursue defendant but the store owner told him to stop. Shields stated he had a good clear observation of defendant in the store for about five to seven minutes from a short distance under brightly lit conditions. Outside the store, Shields was within arms length of defendant and made physical contact with him. Shields stated that defendants distinctive features were his shaved head and the tattoo on the back of his head in large bold letters stating Villains, as well as tattoos on both sides of his neck.

Someone from the store contacted the police and an officer arrived at the scene. Shields talked to the officer, stated what happened and gave a description of the suspect, including the fact that he had a tattoo on the back of his head. Some time after the incident, another officer came to the store and asked Shields if he could identify the suspect from a photo line-up. The prosecutor showed Shields the photo line-up, which was marked at trial as Defendants Exhibit B. Shields confirmed that defendant was shown in photo number 3 in the line-up. Shields said that at the time he saw the photo line-up he had never been to the Lake County jail, had never seen anyone who was in custody on a criminal matter, and had no idea of the significance of any garment worn by defendant in the photo line-up. Shields stated that with regard to the photo line-up he paid no attention to what anyone was wearing [and] was looking at their faces.

Shields also stated that subsequent to the photo line-up, he recognized defendant without prompting in court at the preliminary hearing on July 14, 2006. Shields recalled that the preliminary hearing moved between three courthouses that day. When Shields entered the first courtroom he recognized defendant amongst a group of people. Shields went into the courtroom with no idea whether or not defendant would be there, looked around, and recognized defendant sitting in the jury box. Shields said he recognized defendant based on his memory and independent recollection of the events of November 1, 2005, not based on the photo line-up one month earlier.

City of Lakeport police officer David Mendoza stated that he contacted defendant about 9:17 a.m. on November 1, 2005, on the corner of Armstrong and South Main Street in the City of Lakeport. When he was talking with defendant, Officer Mendoza observed that defendants head was shaved, he had a goatee beard, and a large tattoo which said Villain across the back of his head. Defendant also had tattoos on the sides of his neck, STV on the right side and LCS on the left side. Defendant was wearing a thigh length dark blue denim jacket with a white thermal shirt, baggy blue jeans and white tennis shoes.

Officer Mendoza stated that he was dispatched to Brunos Foods 40 minutes after he spoke with defendant. Brunos Foods is about half a mile away from the location where Mendoza spoke with defendant. When he got to Brunos Foods, Officer Mendoza spoke with Randy Shields. Shields advised [Mendoza] that he had witnessed a male steal a bottled milk and some donuts. The subject left the store without declaring the items. He went outside and contacted the gentleman. They became verbal and confrontational. They tried to apprehend him and the subject turned around and fled. Based on his size and demeanor they did not pursue him. I was given a description of the subject which was jean jacket and a name tattooed across the subjects back of his head and tattoos down his neck. Shields could not tell Officer Mendoza what the tattoo on the back of defendants head said, but said the tattoo was lettering [and] was a name. The description Officer Mendoza received from Shields was consistent with his own observations of defendant half an hour earlier, including defendants shaved head, tattoos and goatee beard, and after Officer Mendoza took the subjects description from Shields he immediately recognize[d] him to be defendant.

Officer Mendoza checked the area but was unable to find defendant, so he returned to the police station and put together a flyer with color photo of defendant. The photo was a frontal head-shot, and in it defendants neck tattoos are not visible. The flyer contained a brief description of defendant (race [white], sex [M], height [6], weight [170], build [slender], complexion [clear], hair [brown] and eye [green]color). It also states in capital letters across the top: Stones head is shaven with Villain tattooed on the back of his head. At the bottom, the flyer describes the clothes defendant was last seen wearing and adds that defendant has LCS and STV tattooed on his neck.

When Officer Mendoza returned to Brunos Foods about 2:00 p.m. in the afternoon for follow-up he had the flyer with him on a clipboard because he was intending to go on from there to the Lake County Sheriffs Department to deliver the poster, so they could put it in their briefing. When he reintroduced himself to Shields, Officer Mendoza had the clipboard in this hand. As the two walked towards the office, Shields saw the photo of defendant on the flyer and spontaneously exclaimed, Thats the guy. Officer Mendoza did not offer the photograph to Shields when this happened, nor did he show it to him and ask him to confirm if it was defendant in the photo. On cross-examination, Officer Mendoza explained it as follows: The flyer that I had, I was not asking anybody to identify anybody. It was simply attached to my clipboard. I was not displaying it in a manner to get his attention to identify that person. Its just kind of how it happened. So I was not showing the photograph or the flyer that I had put together for identification purposes like in a photo line-up.[2]

Detective Norman Taylor testified that on June 28, 2006, he contacted Randy Shields during his investigation of a shoplifting case on which Officer Mendoza had originally filed a report. He wanted to show Shields a line-up containing six photographs, one of which was of defendant. Detective Taylor orally admonished Shields before showing him the photos and Shields signed the admonition form. Among other things, the admonishment form advised that the viewer was not obliged to identify anyone, that it is just as important to free innocent persons from suspicion as it is to identify guilty persons, and that the viewer should not conclude or guess that the photos included the person who committed the crime. Detective Taylor stated that Shields pointed to defendant in photograph number 3 and said, I think thats him.

In the photo line-up, defendant is the only one of the six shown wearing v-necked T-shirt with broad, horizontal, black and white stripes. Detective Taylor stated that the striped T-shirt worn by defendant is issued to persons who are in custody at the Lake County Jail. He stated that when he assembles a photo-line-up, he normally focuses primarily on the physical characteristics of the people in the line-up and tries to make them as similar as possible. Also he tries to make sure nothing stands out from one photograph to the next, whether that be the background or the light. In this case, Detective Taylor noted the background to all the photos is similar, all six photographs depict the subject against a height scale, and all the subjects in those photos are around 6 feet tall. Detective Taylor looked for a photo of defendant that did not depict him in a garment that had been issued by the county jail, but was unable to find one that he could use in a photo line-up. Others in the photo line-up are actually wearing jail clothing, he stated, but due to their classification are not in striped garb. None of defendants tattoos are visible in the photograph. Detective Taylor stated that he was aware of one other individual in Lake County who had a tattoo on the back of his head similar to defendants tattoo.

Discussion

A. Ineffective Assistance of Counsel Claims

Defendant asserts that his trial counsel was constitutionally ineffective on the grounds that (1) counsel failed to renew her Simmons[3] objection at trial after it was denied at the preliminary hearing; (2) trial counsel failed to call an expert witness on identification; (3) trial counsel failed to object to Officer Taylors opinion testimony concerning the reliability of Shields photo identification of defendant. To establish any of these claims of ineffective assistance of counsel, appellant first must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, [appellant] must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)

The burden of proving a claim of ineffective assistance of counsel is on appellant. (People v. Thomas (1992) 2 Cal.4th 489, 530.)   Reviewing courts 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 falls within the wide range of reasonable professional assistance.  [Citation.] [W]e accord great deference to counsels tactical decisions [citation], and we have explained that courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. Tactical errors are generally not deemed reversible, and counsels decision-making must be evaluated in the context of the available facts. [Citation.] [] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. (Citation; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission].) [Citation.] (People v. Jones (2003) 29 Cal.4th 1229, 1254.) There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. (People v. Thomas, supra, 2 Cal.4th at pp. 530-531.) For reasons explained below, none of defendants ineffective assistance of counsel claims meet this exacting standard of review.

(1) Trial Counsels Failure to Renew Simmons Objection at Trial

(a)

At the preliminary hearing, defense counsel asserted that Shields identification of defendant by means of the photo line-up was unduly suggestive of the alleged suspect because he was wearing a jail jumpsuit. The prosecutor countered that the garment held no significance for Shields, that the garment doesnt say jail or correctional facility on it and that it was simply a black-and-white striped garment. The trial court found that the photo lineup was not unduly suggestive. That coupled with the witnesss testimony that he independently recognizes the defendant and the tattoos the defendant has, I think is more than adequate evidence of I.D.

Defendant contends in his opening brief and in his petition for writ of habeas corpus that his trial counsel was ineffective in failing to renew at trial her Simmons motion that defendants photo line-up was unduly suggestive. However, in so doing defendant not only challenges the identification based on the photo line-up, but also attacks the validity of Shields purported improper identification of defendant from the flyer, as well as Shields identification of defendant at the preliminary hearing and at trial. We reject as baseless defendants theory that Shields identification of defendant grew progressively tainted.

(b)

Where, as here, the claim is that counsels performance was deficient because counsel failed to renew an evidentiary motion at trial, the defendant must show that reasonably competent counsel would have renewed such a motion and that the motion would have been successful. (See, e.g., People v. Grant (1988) 45 Cal.3d 829, 864-865; People v. Frye (1998) 18 Cal.4th 894, 989.) In other words, to prove counsels performance was deficient for failure to make a motion or renew a motion, the defendant must prove the motion would have been meritorious. It is well settled that [c]ounsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) The Sixth Amendment does not require counsel to waste the courts time with futile or frivolous motions. (People v. Memro (1995) 11 Cal.4th 786, 834, quoting U.S. v. Hart (1st Cir.1991) 933 F.2d 80, 83; see also People v. Freeman (1994) 8 Cal.4th 450, 509.) Any attempt by defendants trial counsel to renew her Simmons motion concerning the photo line-up, if not frivolous, would certainly have been futile.

[R]eliability is the linchpin in determining the admissibility of identification testimony . . . . Manson v. Brathwaite (1977) 432 U.S. 98, 114.) Even if an identification procedure was suggestive, the standards of fairness as required by the Due Process Clause of the Fourteenth Amendment are met if the identification is reliable under the totality of the circumstances. (Manson v. Brathwaite, supra, 432 U.S. at p. 114; Neil v. Biggers (1972) 409 U.S. 188, 199.) The factors to be included under the totality of the circumstances are the opportunity of the witness to view the criminal at the time of the crime, the witness 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (Manson v. Brathwaite, supra, 432 U.S. at p. 114; Neil v. Biggers, supra, 409 U.S. at pp. 199-200; People v. Cunningham (2001) 25 Cal.4th 926, 989 [same factors].)

(c)

Defendant characterizes Shields momentary glimpse of the flyer on Officer Mendozas clipboard as an improper identification procedure, and even goes so far as to suggest that the Officer acted in bad faith, an aspersion which counsel did not cast at trial. However, according to Officer Mendozas testimony, Shields merely glimpsed the flyer and spontaneously exclaimed, Thats the guy. The officer stated he did not offer Shields the flyer in order to confirm the identification. Even if these somewhat unusual circumstances amounted to an identification procedure, and even if the resulting identification is deemed suggestive, defendants due process rights were not infringed because Shields identification was entirely sound under the totality of the circumstances. In this regard, we stress what defendant chooses to either overlook or understate Shields identification was based on defendants highly distinctive physical appearance and bodily markings, and was backed by Officer Mendozas powerful corroborating testimony.

This is reflected in a review of the factors outlined in Manson v. Brathwaite, supra, 432 U.S. 926 and Neil v. Biggers, supra, 409 U.S. at pp. 199-200. First, Shields opportunity to view defendant was clear and unobstructed. Shields attention was drawn to defendant the minute defendant entered the store, and Shields kept defendant under close observation for about seven minutes from a short distance under brightly lit conditions, and was in direct physical contact with defendant when he tried to apprehend him outside the store. Indeed, Shields could hardly fail to notice defendant with his shaved head, goatee beard, large tattoo across the back of his head (even if he could not read what the lettering said), and tattoos down the side of his neck. Second, Shields degree of attention was extremely high because he suspected defendant was a shoplifter and was keeping him under close observation for that reason. Third, the accuracy of Shields initial description of defendant was so convincing that Officer Mendoza immediately realized that defendant was the shoplifter and set off in search of him in the locality. Fourth, Shields was certain defendant was the perpetrator because as soon as he caught a glimpse of Officer Mendozas flyer he spontaneously exclaimed, Thats the guy. Fifth, there was only few hours between the time when Officer Mendoza responded to Brunos Foods and when he later returned for follow up with the clipboard and flyer under his arm. All these indicators of Shields ability to make a highly reliable and accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, supra, 390 U.S. 377, 383, here there was no pressure whatsoever on the witness to acquiesce in the suggestion that such a display entails. Indeed, Officer Mendoza testified he did not intend for Shields to see the flyer. Rather Shields caught a glimpse of the flyer on the officers clipboard and spontaneously identified defendant without any prompting from the officer. In sum, even if Shields glimpse of the flyer is construed as a suggestive identification procedure, it did not violate appellants due process rights because the identification was thoroughly reliable under the totality of the circumstances.

(d)

Defendant also contends that the photo line-up was unduly suggestive because defendant was the only one of the six shown in a striped shirt and wearing a goatee. This contention is meritless.

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. (People v. Hunt (1977) 19 Cal.3d 888, 893 [140 Cal.Rptr. 651, 568 P.2d 376].) However, there is no requirement that a defendant in a line-up, either in person or by photo, be surrounded by others nearly identical in appearance. (People v. Wimberly (1992) 5 Cal.App.4th 773, 790 [7 Cal.Rptr.2d 152].) Nor is the validity of a photographic line-up considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the line-up. (See People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218 [14 Cal.Rptr.2d 702, 842 P.2d 1] [where the defendant was the only person in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [9 Cal.Rptr.2d 628, 831 P.2d 1210] [where the defendant was the only man in a red shirt].) (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

Here, defendants photograph does not stand out as the sole possible or most distinguishable choice.[4] All six photographs depict white males of similar build and height with closely cropped or shaved heads. Defendants facial hair is not pronounced. The background color and image size does not differ markedly among the various photographs. Defendant complains that his striped shirt marks him out as a jail bird. But his shirt has no markings or lettering on it which designate it as jail garb. Moreover, defendants concern on this score is undercut by the fact that all six of the photographs depict men standing against a height scale on which each approximates six feet. The fact that the individuals are all depicted against height scales is much more indicative of their incarcerated status than is defendants innocuously striped shirt. In sum, we conclude that the individuals shown in the photos are sufficiently similar such that the line-up was not unduly suggestive. (Cf. People v. Johnson, supra, 3 Cal.4th at p. 1217 [concluding that the identification procedure was sufficiently neutral where all the photos showed Black males, generally of the same age, complexion, and build, and generally resembling each other and noting that [m]inor differences in facial hair among the participants did not make the lineup suggestive].)

Moreover, even if the photo line-up was suggestive, which it was not, the factors we have already discussed above show that Shields identification of defendant was reliable and therefore not in violation of due process. Principal among the totality of the circumstances here is that Officer Mendozas testimony provided powerful corroborating evidence of Shields identification. Officer Mendoza spoke with defendant only half a mile away from Brunos Foods, and only forty minutes before he received the call from dispatch to respond to a report of a shoplifting incident there. During his conversation with defendant, Officer Mendoza observed how defendant was dressed, as well as his goatee beard, shaved head, and striking tattoos. Shortly thereafter, Officer Mendoza responded to Brunos Foods and spoke with Shields. When Shields described the perpetrator, Officer Mendoza instantly matched the description to defendant. Given such strong corroborating evidence, the striking nature of defendants appearance, and the other factors indicating the reliability of Shields identification discussed above, we cannot say that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citation.] (People v. Contreras (1993) 17 Cal.App.4th 813, 821 [italics added], quoting Simmons v. United States, supra, 390 U.S. at p. 384; see also People v. Cunningham, supra, 25 Cal.4th at p. 990 [stating that there must be a substantial likelihood of irreparable misidentification under the  totality of the circumstances   to warrant reversal of a conviction on this ground].) Moreover, having determined that the procedure by which Shields identified defendant was constitutionally sound, we also reject defendants contentions that subsequent in-court identifications, at the preliminary hearing and at the trial, were tainted by the earlier photo line-up. (Manson v. Brathwaite, supra, 432 U.S. at p. 110, fn. 10 [stating that under the totality [of circumstances] approach, . . . if the challenged identification is reliable, then testimony as to it and any identification in its wake is admissible. [italics added].)

In sum, Shields brief glimpse of Officer Mendozas flyer, even it amounted to an identification procedure, was not impermissibly suggestive under the totality of the circumstances. The photo line-up was not suggestive. Even if it could be so construed, it did not result in an unreliable identification. Accordingly, any attempt by trial counsel to renew her Simmons motion on the grounds that the photo line-up was unduly suggestive would have been denied. Thus, counsel did not render ineffective assistance by failing to renew her Simmons motion at trial. (People v. Price, supra, 1 Cal.4th at p. 387.)

(2) Trial Counsels Failure to Call an Expert Witness

Defendant also contends on appeal and in his habeas petition that trial counsel was ineffective for failing to call an expert witness on identification. In his habeas petition, defendant presents a declaration by Dr. Geoffrey R. Loftus, a Professor of Psychology at the University of Washington in Seattle. Dr. Loftus states that his area of expertise is human perception and memory, an area in which he has been qualified as an expert in over 200 cases in trial courts across eleven states, including California. Dr. Loftus explains that when testifying in his role as an expert witness, he generally provides a series of mini lectures to educate the jury about various relevant aspects of perception and memory so that the jury understands that, contrary to common sense, a confident witness is not always an accurate witness. The expert witness describes to the jury scientifically understood circumstances under which confidence should not be taken as a predictor of accuracy.

Dr. Loftus opines that in this case various eyewitness issues were critical and should have been explained to the jury, including a general theory of perception and memory, focusing on how memory changes over time to become more detailed and coherent but not necessarily more accurate; scientific evidence concerning the circumstances under which memory fails, and the consequences of such memory failure for eyewitness testimony; scientific evidence concerning the effects of attention including the phenomenon of change blindness, which demonstrates that a person may not recognize someone he or she just talked to seconds earlier; scientific evidence concerning problems with showup procedures; scientific evidence concerning the nature of post-event information, such as the flyer Shields saw in this case; and lastly, scientific evidence concerning the circumstances under which the confidence with which a witness recounts a memory may and may not reflect the accuracy of that memory. Based on his review of the case, Dr. Loftus states that if he had been called to testify, he would have offered opinions that the showup and line-up procedures used in this case were defective; that Shields identification of defendant was likely suggested and reconstructed; and that any subjective certainty that might be attested to by Shields at trial could scientifically explained [sic] as the result of post-event suggestion.

In his habeas petition, defendant asserts that Dr. Loftuss testimony would have cast doubt on Shields initial perception to the extent that it was accompanied by the stress of trying to physically detain appellant and his stated desire not to get hurt. We doubt that very muchShields was a veteran employee of 23 years who had dealt with instances of shoplifting on many occasions before, and this incident did not appear to stress him unduly, because he testified he wasnt frightened, he just didnt want to have a confrontation over a donut. Moreover, defendants principal reliance on McDonald[5] to bolster his ineffective assistance of counsel claim on this point is without merit. McDonald is not a habeas case, so the Supreme Court did not address the issue of whether counsel was ineffective for failure to call an expert witness. Rather, McDonald addressed the entirely different issue of whether the trial court abused its discretion by excluding at a murder trial the testimony of a psychologist who is a qualified expert witness [offered by the defense] on psychological factors shown by the evidence that may affect the accuracy of an eyewitness identification of the defendant. (McDonald, supra, 37 Cal.3d at p. 355.) The Supreme Court held that on a proper showing such testimony is admissible, and that it should have been admitted in the case at bar. (Ibid.)

In McDonald, it was established that the victim was shot and killed by a black man in downtown Long Beach: The principal issue was the identity of the perpetrator. The prosecution presented seven eyewitnesses who identified defendant as [the gunman] with varying degrees of certainty, and one eyewitness who categorically testified that defendant was not the gunman; the defense presented six witnesses who testified that defendant was in another state on the day of the crime. (McDonald, supra, 37 Cal.3d at p. 355.) The testimony of the prosecution witnesses was peppered with indicia of unreliability, including things like the view of the gunman being partially blocked by parked and passing vehicles at the intersection; the gunman had his back to the witness for part of the time; the witness was frightened and looked away; and out of fear the witness took only a sideward glance towards the gunman as he walked past. None of the four witnesses who positively identified defendant at trial as the perpetrator had been completely certain in their prior photo identifications, and several of the prosecution witnesses were uncertain in their identification of the defendant at trial. (Id. at pp. 355-356.)

The Supreme Court concluded that elements of the prosecution testimony raised reasonable doubts as to the accuracy of the identification. These elements included the suddenness and unexpectedness of the event, discontinuity and other difficulty of observation, fear and other stress at the time of perception, overestimation of the duration of the event, feedback factors following the event, failure or uncertainty of several witnesses in selecting defendants photograph from police displays, and, particularly important, apparent cross-racial identification discrepancies. Further doubts could have arisen from the dramatic declaration in open court by a prosecution eyewitness that defendant was not the perpetrator, and from the testimony of six witnesses that defendant was not in the state on the day the crime was committed. (Id. at p. 375-376.) In light of such conflicting and ambiguous identification testimony, the Supreme Court held that the trial court abused its discretion by excluding defense expert testimony because the ruling undercut the evidentiary basis of defendants main line of defensehis attack on the accuracy of the eyewitness identificationsand deprived jurors of information that could have assisted them in resolving that crucial issue. (Id. at p. 376.) Nor was the error harmless, the Court added, because the issue affected by the ruling was crucial, given the absence of any other evidence connecting defendant with the crime; and the evidence on that issue was close, given the potential weaknesses in the prosecutions testimony and the presence of both eyewitness and alibi testimony favorable to the defense. (Ibid.)

In contrast, none of the factors of concern to the Supreme Court in McDonald were even present in this case: There was no conflicting identification testimony by prosecution witnesses; no alibi evidence; no cross-racial identification discrepancies; no sudden and unexpected event; no fear and stress generated by a violent situation, no discontinuity or any other difficulty of observation; and no dramatic declaration by a prosecution witness that defendant was not the perpetrator. Instead, we have a self described old-timer employee at Brunos Foods who spots a shoplifter as soon as he steps in the door, a shoplifter with a shaved head, tattoos down his neck, and a large tattoo in bold lettering across the back of his shaved head. Not only that, but the old timer follows the shoplifter around the brightly lit store keeping him under observation for a period of five or seven minutes, watching his every move, before finally making close physical and verbal contact with the shoplifter outside the store. In addition to all that, the old timers description of the shoplifter is corroborated by a police officer who spoke with the shoplifter less than half a mile from the store only forty minutes ago. Under these facts, we easily conclude that trial counsels tactical decision not to call an expert witness on identification did not fall below objective standards of professional competence. Accordingly, trial counsel did not provide ineffective assistance of counsel by choosing not to call an expert witness on identification.[6]

(3) Trial Counsels Failure to Object to Officer Taylors Testimony

Defendant contends trial counsel provided ineffective assistance by failing to object to testimony by Officer Taylor concerning his opinion on the reliability of Shields identification of defendant.

(a)

On cross-examination, Detective Taylor stated that Shields was not 100 percent certain of his identification [of defendant] and had remarked that part of the reason was that it occurred seven months ago. On re-direct examination, the following colloquy ensued between the prosecutor and Detective Taylor without objection by defense counsel:

Q. And based on your training and experience can you tell us whether or not you have an opinion as to whether an identification of a suspect that takes place close in time to the incident is more reliable than an identification that takes place later, say seven months later?

A: To be very honest with you, I found that the identification that occurs at a later date is more reliable because that persons identity is some how ingrained in that witness or victims memory. That they can . . . look at a face mixed in with a group of similar faces at some time later and actually still be able to ― to pick out that person. [] Because oftentimes, I wonder myself how Im going to go back, sometimes as much as a year later, and show this person a group of photographs of people that I honestly think to myself, boy, I dont know if I could pick out that person. And then have them think back to the day of the incident and open their eyes and point out the person that they remember being there. In my experience those people are certainly more assertive of their selection as to who was involved.

Q. The fact that the line-up you did on June 28th, this year, with Mr. Shields, took placeI think its actually closer to eight months after the incidentdoes not affect its reliability in your opinion?

A. Not in my opinion.

Q. If a person is given multiple opportunities to identify a person, a suspect in a crime and on each occasion identifies the same person, does that have an affect on your opinion as to whether or not thats a reliable identification?

A. Certainly.

Q. And how does that affect your opinion?

A. Obviously, in my opinion, it would be that someone who has identified the same person over an extended period of time, when those times are separate so they dont have the opportunity to view photographs or see the person again, and they repeatedly select the same person, that identification is more reliable.

On recross-examination, defense counsel probed whether in Officer Taylors experience witnesses had mistakenly identified a subject and the officer acknowledged that had happened once or twice. Under further questioning, Detective Taylor confirmed that he had been trained about suggestiveness in identifications in order to avoid a line-up in which one person is suggested as the perpetrator. He also acknowledged that in his experience a person could look different in their photo than the way they look in real life.

(b)

Defendant asserts that Detective Taylors opinions on the reliability of identifications was without qualifying foundation because he is not a licensed psychologist and his police training and experience did not qualify him to render such opinion testimony. Further, defendant asserts that had Taylors testimony been disqualified or stricken then it is reasonably probable that the outcome at trial would have been more favorable to defendant.

Certain of Detective Taylors statements may very well have been open to a proper objection, such as his opinion that an identification that occurs at a later date is more reliable because that persons identity is some how ingrained in that witness or victims memory. But even if Detective Taylors training and experience does not provide adequate foundation for such statements, it does not follow that trial counsels failure to object to them amounts to ineffective assistance. In the first place, the record does not show why trial counsel chose not to lodge an objection, but there are several plausible explanations: Counsel may have decided it was more advantageous to allow the detective to render unqualified opinions and then simply shoot holes in them in recross-examination, which she indeed attempted to do; or, counsel may have thought it risky to object, whereupon the prosecutor may have attempted to qualify the detective and clothe him as an expert before the jury. Such plausible explanations, in the absence of any other in the record, mean defendants ineffective assistance claim must fail. (People v. Anderson (2001) 25 Cal.4th 543, 569 [[w]hen 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] [italics added]; People v. Fosselman (1983) 33 Cal.3d 572, 581 [same].)[7]

In any case, even if trial counsel should have objected, and assuming such objection would have been sustained, defendants ineffective assistance claim still fails because he cannot demonstrate prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [defendant must establish prejudice by showing a reasonable probability that but for counsels error the result of the proceeding would have been different], citing Strickland, supra, 466 U.S. at p. 693.) Here, despite defendants characterization of Detective Taylors testimony as de facto expert opinion, the jury was not instructed regarding expert testimony so his testimony was not accorded any special significance in the jurys eyes. More importantly, and as with all his claims which at bottom attack the reliability of Shields identification, defendant ignores the fact that Shields identification did not stand aloneOfficer Mendozas testimony provided powerful corroborating evidence that Shields identification was indeed reliable and accurate. In sum, defendants claim of ineffective assistance fails on this ground also.

B.               Jury Instructions

Defendant contends that the trial court erroneously instructed on the presumption

of innocence and the prosecutions burden of proof, resulting in prejudicial structural error. We need not reach the issue of prejudice, because we conclude the trial court committed no instructional error.

The trial court instructed the jury before trial with CALCRIM 103, and after trial with CALCRIM 220. The instructions are identical except that CALCRIM 103 includes the bracketed language: [I will now explain the presumption of innocence and the Peoples burden of proof. The defendant has pleaded not guilty to the charges.] The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

(1)

Defendant focuses on two phrases in the above instruction. First, he contends that the phrase impartially compare and consider all the evidence renders the instruction constitutionally infirm because it connotes the civil, preponderance standard of proof by implying a weighing of two opposed sets of evidencethe proverbial balancing of the scales. Defendant reasons that this undermines the presumption of innocence and lessens the prosecutions burden of proof because if no contrary evidence were put into the defendants [side] of the scale, the People would have sustained their burden of proof because it would obviously outweigh the absence of evidence on the other side.

Initially, we note that defendant did not object below when the trial court instructed the jury with CALCRIM Nos. 103 and 220. Accordingly, appellant has waived this claim of instructional error on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found where defense counsel agreed to giving of instruction and raised no objection]; People v. Jennings (1991) 53 Cal.3d 334, 374 [failure to object to improper information presented to jury forfeits claims on appeal]; see also People v. Vera (1997) 15 Cal.4th 269, 275-276 [as a general rule, appellate court will not consider claims of error that could have been ― but were not ― raised in the trial court]; People v. Viray (2005) 134 Cal.App.4th 1186, 1209 [where no objection is raised in trial court, evidentiary claim is waived even where defendant argued it affected his substantial rights].)

Even if preserved for review, we are not persuaded by defendants exercise in semantics. In the first place, a jury instruction cannot be judged on the basis of one or two phrases plucked out of context: Rather, the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Young (2005) 34 Cal.4th 1149, 1202 [internal quotations and citations omitted]; People v. Smithey (1999) 20 Cal.4th 936, 963 [same].) Moreover if a jury instruction appears ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] . . . The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. (See People v. Garceau (1993) 6 Cal.4th 140, 189, [24 Cal.Rptr.2d 664, 862 P.2d 664] [any possibility of confusion about conspiracy instruction was diminished by the parties closing arguments], disapproved on another ground in People v. Yeoman, supra, 31 Cal.4th at pp. 117-118; People v. McPeters (1992) 2 Cal.4th 1148, 1191, [9 Cal.Rptr.2d 834, 832 P.2d 146] [correct view of the law regarding mitigating factors in penalty phase trial was reinforced by the parties closing arguments].) (People v. Young, supra, 34 Cal.4th at p. 1202.)

Here, we cannot see how a jury would place enough significance on a single wordcomparesuch that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to compare and consider all the evidence that was received throughout the entire trial. It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole. Elsewhere in the instruction the jury is told that [t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true and that [a] defendant in a criminal case is presumed to be innocent, [which] . . . requires that the People prove each element of a crime beyond a reasonable doubt. Further, the instruction tells the jury that [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (Italics added.)

The idea that the jury would interpret compare to mean that guilt is to be determined by a balancing-of-the scales approach which compares the evidence offered by two sides is further undercut by other instructions. The jury was told that [n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant. The jury was also instructed that the defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. In sum, reading the instructions as a whole, together with the fact that nowhere in closing arguments do counsel so much as allude to a preponderance standard, we are convinced that there is no likelihood whatsoever that the jury could have interpreted the compare and contrast language in the instruction in the manner suggested by defendant.

(2)

The second phrase defendant takes issue with in CALCRIM Nos. 103 and 220 is abiding conviction in the instructions definition of proof beyond a reasonable doubt. Defendant contends this phrase renders the burden of proof instruction constitutionally infirm because it conflates the separate concepts of duration and weight. As defendant states it: The phrase abiding conviction conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based [on] weighty evidence. The concept of proof beyond a reasonable doubt embodies the requirement of gravity of proof, not simply a decision that is lasting.

Californias burden of proof instruction has been subjected to various challenges and changes over time. CALCRIM 220 replaced CALJIC 2.90, which also contained the abiding conviction language in defining reasonable doubt as follows: Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (CALJIC 2.90)

Before 1994, CALJIC No. 2.90s definition of reasonable doubt included the phrase to a moral certainty after abiding conviction as follows: It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. In Victor v. Nebraska (1994) 511 U.S. 1, 7, the high court upheld this version of CALJIC No. 2.90, but criticized as archaic the instructions use of the phrase moral certainty, stating: We do not think it reasonably likely that the jury understood the words moral certainty either as suggesting a standard of proof lower than due process requires or as allowing conviction on factors other than the governments proof. At the same time, however, we do not condone the use of the phrase. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship[8] standard. Indeed, the definitions of reasonable doubt most widely used in the federal courts do not contain any reference to moral certainty. (Victor v. Nebraska, supra, 511 U.S. at pp. 16-17.)

After Victor v. Nebraska, supra, was decided, the California Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, recommended the use of a reasonable doubt instruction which deleted the phrase to a moral certainty. The Freeman instruction thus defined reasonable doubt as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9.) The language of CALJIC No. 2.90 was then revised in 1994 in accordance with the California Supreme Courts suggestion in Freeman.

In short, the abiding conviction language criticized in CALCRIM 220 by defendant in this case can be traced directly to the instruction approved in Freeman, supra, in which the Supreme Court explicitly sanctioned language defining reasonable doubt as that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.[9] (People v. Freeman, supra, 8 Cal.4th at p. 504, fn. 9; CALCRIM 220, Bench Notes, citing People v. Freeman, supra, as authority for the instruction.) Even if dictum, the Supreme Courts approval of the instruction is highly persuasive. (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328, [27 Cal.Rptr.2d 406].) Moreover, the concept of an abiding conviction was also given a stamp of approval in Victor v. Nebraska, supra, where the high court stated: Although in this respect moral certainty is ambiguous in the abstract, the rest of the instruction . . . lends content to the phrase. The jurors were told that they must have an abiding conviction, to a moral certainty, of the truth of the charge. . . . An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof. [Citations.] (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15 [italics added].) Furthermore, numerous California cases since Freeman have rejected due process challenges mounted against the criminal burden of proof instruction with its abiding conviction language. (See, e.g., People v. Miller (1999) 69 Cal.App.4th 190, 213-214; People v. Craig (1998) 65 Cal.App.4th 1082, 1093; People v. Gonzalez (1998) 64 Cal.App.4th 432, 451; People v. Cochran (1998) 62 Cal.App.4th 826, 833; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1451; People v. Light (1996) 44 Cal.App.4th 879, 887-889.) Indeed, in People v. Haynes (1998) 61 Cal.App.4th 1282, First District, Division Two of the Court of Appeal rejected substantially the same due process argument made by defendant in this casethat the term abiding conviction is a standard for duration but not the degree of certitude jurors must have. (Id. at p. 1299.)

In sum, defendants assertions on the deficiencies of the phrase abiding conviction must give way to the great weight of legal authority approving that very language. Accordingly, defendants claims of instructional error must fail.

DISPOSTION

The judgment is affirmed in docket number A116034 and defendants petition for writ of habeas corpus in docket number A117978 is denied.

_________________________

Horner, J.*

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Steven Michael Stone, A116034; In re Steven Michael Stone, on Habeas Corpus, A117978