Filed 5/11/17 P. v. Vega CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR VEGA,
Defendant and Appellant.
F070233
(Super. Ct. No. LF009842A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Donald B.
Squires, Judge.*
William A. Malloy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

*Retired judge of the Alameda Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
2.
INTRODUCTION
On August 22, 2014, after a jury trial, defendant Victor Vega was found guilty of
attempted murder (Pen. Code,
1 §§ 664, 187, subd. (a); count 1) and assault with a deadly
weapon (§ 245, subd. (a)(1); count 2). The jury found true allegations in both counts that
defendant committed his offenses for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)) and caused great bodily injury to the victim (§ 12022.7, subd. (a)). In count
1, the jury found true an allegation defendant premeditated killing the victim willfully
and deliberately (§ 189), and personally used a weapon (§ 12022, subd. (b)(1)).
In a bifurcated proceeding, the defendant waived a jury trial on the truth of prior
convictions. The trial court found true allegations defendant had convictions qualifying
as serious or violent felonies under the three strikes law (§§ 667, subds. (c)-(j), 1170.12,
subds. (a)-(e)) for second degree robbery (§ 212.5, subd. (c)) and attempted unlawful
taking of a vehicle (§ 664; Veh. Code, § 10851, subd. (a)). The court also found true an
allegation defendant qualified for prior prison term enhancement (§ 667.5, subd. (b)).
On October 2, 2014, the trial court struck one of defendant’s prior strikes and
sentenced him to a term of 30 years to life on count 1, plus determinate terms of three
years for the great bodily injury enhancement, one year for the deadly weapon
enhancement, and one year for the prior prison term enhancement. The court stayed
defendant’s sentence on count 2 pursuant to section 654. Defendant’s total prison term is
an indeterminate sentence of 30 years to life plus a determinate sentence of five years.
The court granted total custody credits of 277 days.
On appeal, defendant contends his trial counsel was ineffective. Defendant argues
there were several assailants of the victim. Defendant contends because defense counsel
successfully suppressed a suggestive photographic lineup used to identify him, defense
counsel could not later use the suggestive photographic lineup to argue to the jury the

1Unless otherwise designated, all statutory references are to the Penal Code.
3.
identification process was suggestive and unfair. We find no error and affirm the
judgment.
FACTS
Assault of Daniel Gonzalez
Defendant is a member of the Lamont 13, or Varrio Chico Lamont, street gang.
Lamont 13 aligns with the Southerners and is subservient to the Mexican Mafia prison
gang; their rivals are the Northerners and the Nuestra Familia prison gang. In 2009,
police investigated defendant as a potential suspect for an assault, and he admitted he was
a member of the gang. Defendant has numerous tattoos reflecting his allegiance to
Lamont 13, including but not limited to the Mayan symbols for the number 13 on his left
brow, VCL—for the term “Varrio Chico Lamont”—on his chest in Old English style
writing, “Lamonster” on his left eyebrow, “Lamont” on his neck, a K on his right cheek,
a C on his left cheek, and “Varrio” and “Chico” on his hands.2

At 7:00 p.m. on December 21, 2013, Daniel Gonzalez was walking in Weedpatch
near Harold Street and Ralph Avenue. Gonzalez wore a dark blue bandanna to warm his
head and carried a folding pocket knife for protection. A group of males entered the road
from an adjacent field and approached Gonzalez. The group wielded white pipes and
immediately surrounded Gonzalez.
An individual, who Gonzalez later identified in court as defendant, approached
Gonzalez and asked where he was from. Gonzalez identified defendant at trial as the
person who came up to him, spoke to him, and assaulted him. “Where are you from” is a
common phrase gang members use to ask unknown individuals what, if any, gang they
identify with. Gonzalez told defendant, “I don’t bang.” When confronting Gonzalez,
defendant stood about three or four feet away. Gonzalez said he never opened the knife

2There was further gang expert testimony. Because defendant raises no issue regarding
that testimony, we do not present it further.
4.
he was carrying in his pocket. Gonzalez later told Deputy Daniel Perez the person who
stabbed him had a tattoo on each cheek.
Gonzalez turned to walk away, and the group immediately began assaulting and
yelling at him. Gonzalez was struck in the head and stabbed in the back, chest, and arms.
Gonzalez fell to the ground and put his hands up to protect himself. Gonzalez was
bleeding and scared. Roxanne Sarabia observed the assault while sitting in her car and
talking on her phone. Sarabia heard incomprehensible yelling from a group of
individuals screaming at one man by himself. The group completely surrounded the lone
man. Sarabia exited her car, ran towards the assailants, told them to stop, showed them
the phone in her hand, and said she was calling the police. Sarabia chased the assailants.
The assailants ran away from her. After calling Sarabia a bitch and throwing a pipe at
her, the assailants scattered.
Officers arrived at the scene. When asked to describe the attackers, Gonzalez
whispered to an officer that “it was Lamont.” One deputy explained there was some
lighting near the site of the assault, but not very much. Gonzalez blacked out and was
taken to the hospital, where he was treated for life-threatening injuries. Gonzalez’s
injuries included a broken rib, a collapsed lung, and stab wounds on his back, chest, and
arms. Gonzalez spent 11 days in the hospital, had two surgeries, and as of the time of
trial he was still receiving treatment, including pain medication, for his injuries.
Two days after the attack, probation officers Elizabeth Madden and Carlos Sillas
conducted a compliance check on defendant. The officers searched defendant’s house
and found a knife and a sheath on a shelf in his bedroom closet. The officers arrested
defendant because possessing a knife violated his probation terms.
DNA obtained from dried blood detected on the knife and sheath was analyzed at
the county crime lab and compared with DNA samples collected from Gonzalez and
defendant. The analysis revealed three DNA profiles; neither defendant nor Gonzalez
could be excluded as contributors to the DNA obtained from the knife and sheath. It was
5.
745,000 times more likely that defendant’s DNA was on the knife than a coincidental
match from a Hispanic male. It was 30 quintillion times more likely that Gonzalez’s
DNA matched the DNA on the knife than a coincidental match among Hispanic males. It
was 3.4 times more likely that defendant’s DNA, and 68 quintillion times more likely that
Gonzalez’s DNA, matched the DNA on the sheath than a coincidental match among
Hispanic males.
Deputy Perez of the Kern County Sheriff’s Department questioned Gonzalez in
the hospital approximately a week after the assault. Gonzalez told Perez the assailant
who approached him and asked where he was from had a tattoo on his cheek. There were
between five and seven assailants.
In phone calls from the jail played for the jury, defendant discussed the knife and
sheath the probation officers seized from his room. He told a friend, “Fuckin’ that P.O.
got me though fool. And fuckin’ I was trying to go, I was trying to sleep bomb that day
dawg. I was like fuck this fool. [¶] … [¶] … I know fool. Hey, hey it was ’cause of that
fuckin’ knife dawg if I didn’t have that shit in the pant drawer I would of got away with
it.… [¶] … [¶] … I was too lazy to put it anywhere that’s why that night when I, when I,
the pad I was tired fool.” In a separate call, he told an unknown male that he was in jail
for “just a violation. The[y] found my knife fool. The one that was, that I— [¶] …
[¶] … The one that I took that day for the, for the peckers.”
Suppression of Defendant’s Photographic Lineup
Defendant brought a pretrial motion to suppress the photographic lineup shown to
Gonzalez on the ground it was unduly suggestive. Defendant sought to suppress any
testimony of Gonzalez’s identification of defendant from the lineup. The pretrial hearing
on defendant’s motion was held on August 14, 2014. Deputy Perez testified he prepared
a six-pack photographic lineup that included a picture of defendant to show to Gonzalez a
week after the assault. The lineup was created by a computer application called Cogent
that builds a random lineup from a picture of the defendant.
6.
Prior to showing Gonzalez the lineup, Perez admonished him the photographs may
or may not have the assailant’s picture, to keep in mind hairstyles and facial hair can be
easily changed, the photographs may not depict the true complexion of a person, and to
pay no attention to any markings or numbers appearing on the pictures.
Defendant was subject 4 in the lineup. After viewing the lineup, Gonzalez flipped
through full-page photos of the six people in the lineup. Gonzalez stopped and stared at
the picture of defendant, placed his hand over defendant’s forehead, and told Perez
defendant was one of his attackers. Gonzalez spent a lot of time going through the stack
of photos before identifying defendant. Gonzalez also told Perez his attacker had a tattoo
on his cheek. Defendant’s photograph was the only one where the subject had multiple
facial tattoos. Perez did not direct Gonzalez to identify anyone in the lineup.
The trial court granted defendant’s motion, noting it had never seen such a bad
lineup. The court explained that although subject 1 may have had a facial tattoo, it was
hard to see because of shading on his face, and defendant was the only subject who had
two large facial tattoos. The court excluded the identification and the pictures used in the
lineup.
Defense counsel subsequently moved to exclude Gonzalez’s in-court identification
of defendant on the ground such an identification would be the product of the tainted
photographic identification. The trial court denied defendant’s motion.
Defense counsel cross-examined Gonzalez and a deputy about the street lighting
the evening of the assault. Defense counsel questioned Sarabia about the clothing the
attackers were wearing. She explained all were wearing hoodies. During closing
argument, defense counsel used the suppressed photographic lineup to defendant’s
advantage. Defense counsel argued to the jury Gonzalez identified his primary assailant
as having a single tattoo on his face.
Counsel emphasized the prosecution failed to provide any evidence of prior
identification by Gonzalez of defendant, failed to produce evidence Gonzalez was shown
7.
a photographic lineup of defendant, and was given no opportunity to verify or eliminate
defendant prior to trial. Counsel argued Gonzalez walked into court, saw defendant with
two tattoos on his face, and identified him without making a prior identification. Counsel
argued it would have been more fair for Gonzalez to identify defendant out of a group of
subjects with tattoos on their faces. Counsel argued mistaken identifications are made all
of the time.
Among the instructions the jury was given on how to evaluate identification
testimony were: whether the witness knew the defendant prior to the event, how well the
witness could see the perpetrator, what was the witness’s ability to observe including the
lighting, was the witness under stress when making the observation, did the witness give
a description of the perpetrator that compares to defendant, and how much time passed
between the event and the witness’s identification of defendant.
DISCUSSION
Alleged Ineffective Assistance of Trial Counsel
Defendant contends his trial counsel was ineffective because when counsel
successfully suppressed the lineup, he removed from the jury’s consideration the issue of
whether Gonzalez’s identification of defendant’s photograph was reliable or the result of
an unfair photographic lineup that clearly singled out defendant’s photograph from the
others in the lineup. Defendant argues his trial counsel had no rational tactical purpose in
pursuing suppression of the lineup, and there is no satisfactory explanation for counsel’s
conduct. We reject defendant’s assertions.
Defendant has the burden of proving ineffective assistance of trial counsel. To
prevail on a claim of ineffective assistance of trial counsel, the defendant must establish
not only a deficient performance, which is a performance below an objective standard of
reasonableness, but also prejudice. Prejudice is shown when there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
8.
would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re
Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to
undermine confidence in the outcome. The second question is not one of outcome
determination but whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption trial counsel’s conduct falls within the
wide range of reasonable professional assistance. Tactical errors are generally not
deemed reversible. Counsel’s decisionmaking is evaluated in the context of the available
facts. To the extent the record fails to disclose why counsel acted or failed to act in the
manner challenged, appellate courts will affirm the judgment unless counsel was asked
for an explanation and failed to provide one or unless there simply could be no
satisfactory explanation. Prejudice must be affirmatively proved. The record must
demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th
342, 389.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will
only occur if: (1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there could be no satisfactory explanation for counsel’s choices.
All other claims of ineffective assistance of counsel are more appropriately resolved in a
habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant’s argument assumes the jury would view an unduly suggestive lineup
objectively and conclude Gonzalez’s identification of defendant was tainted and
unreliable. Defendant extrapolates from this assumption the jury necessarily would have
reached a more favorable result than convicting him for attempted murder. Defendant’s
argument is speculative. Defendant fails to account for the strong possibility of a
negative effect on the jury from viewing the tainted photographic lineup. Defendant is
9.
undeniably subject 4 and the only one with clearly visible, large tattoos on each side of
his face.3
Viewing his photograph could easily have the opposite effect on the jury and
reinforce the jury’s perception defendant had to be the assailant because his tattoos were
unique when compared to five other subjects without similar tattoos across their faces.
The strategy defendant argues his counsel should have followed carried other
risks. As the People observe, the trial court’s determination the photographs in the lineup
were unduly suggestive was guided by years of legal experience and case law. There is
no guarantee the jury would have viewed the photographs the same way. Had the lineup
been shown to the jury, the prosecutor could have had Deputy Perez testify as he did
during the pretrial hearing that the photographs were chosen by a computer application.
This could have given the computer-generated lineup the air of scientific legitimacy,
authority, or a respectability it did not legally or objectively warrant. Looking at the
computer-generated lineup, the jury could have logically concluded the evidence did not
undermine but actually bolstered Gonzalez’s in-court identification.
Rather than showing the jury the contested photograph, defense counsel argued to
the jury there had been no identification of defendant by Gonzalez prior to trial. Defense
counsel directly challenged Gonzalez’s identification of defendant at trial—which was
eight months after the incident—and was based on the fact defendant was the only person
in court with such large tattoos on his face. Defense counsel noted to the jury the lighting
at the time of the incident was poor. The instructions to the jurors concerning how they
were to weigh eyewitness identification of defendant fit well into defense counsel’s
approach in trying to undermine the credibility of Gonzalez’s testimony.
Defendant’s argument is a challenge to the sound tactical decisions made by his
attorney at trial. The potential prejudice to defendant by using an unduly suggestive

3The photographic lineup was unduly suggestive as found by the trial court. The only
subject with large tattoos on his face is defendant. The parties do not contest and we find no
error in the trial court’s ruling.
10.
photographic lineup was far greater and more fraught with danger than defense counsel’s
sound, rational, and reasoned tactical choice to use other tools to undermine Gonzalez’s
credibility in making the identification.
The morning after the game is played, thousands of sports fans, guided with the
clarity of hindsight, profess to know how they could have played the game better than the
athletes executing complex plays on the gridiron. Like other Monday morning
quarterbacks, defendant is challenging his counsel’s thoughtful tactical decisions after the
fact. Defendant has failed to show inadequate representation by his trial counsel, and we
find his argument unpersuasive.
Finally, defendant has failed to demonstrate the second prong of ineffective
assistance of trial counsel: prejudice. Defendant must show a reasonable probability
that—but for counsel’s mistakes—defendant would have achieved a more favorable
outcome. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394.) A reasonable probability
is one sufficient to undermine confidence in the outcome. (In re Hardy, supra, 41
Cal.4th at p. 1018.)
With or without the lineup, Gonzalez described his attacker as being within feet of
him and having a tattoo on his face. This made Gonzalez’s in-court identification of his
attacker credible. The DNA evidence from the knife and the sheath it was stored in,
however, overwhelmingly showed the blood was Gonzalez’s. The knife and sheath were
discovered during a probation search of defendant’s bedroom inside his closet. During a
recorded jailhouse conversation, defendant admitted he brought the knife with him that
day and had been too lazy to dispose of it when he returned home, leaving it in his closet.
With or without the photographic lineup before the jury, the outcome of the case would
not have been different had defense counsel chosen a different tactic.
11.
DISPOSITION
The judgment is affirmed.
_____________________
PEÑA, J.
WE CONCUR:
__________________________
GOMES, Acting P.J.
__________________________
SMITH, J.