Filed 5/29/13 P. v. Gary CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055074
v. (Super.Ct.No. RIF10000840)
DARTAGNAN ANDRE GARY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. W. Charles Morgan,
Judge. Affirmed with directions.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Vincent P.
LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
Dartagnan Andre Gary, the defendant, was charged with murder in the shooting 1 death of Jared D., on a street near a house where a party was held. The shooting followed
a gang challenge to the Gutta1 Squad Mafia street gang, of which defendant was an
associate. A jury convicted defendant of first degree murder (Pen. Code,2 § 187, subd.
(a)), found that a firearm was discharged, causing death, in the commission of the crime
(§ 12022.53, subd. (d)), and the crime was committed for the benefit of a criminal street
gang. (§ 186.22, subd. (b).) Defendant was also convicted of a active participation in a
criminal street gang. (§ 186.22, subd. (a).) He was sentenced to an aggregate term of 50
years to life and appealed.
On appeal, defendant argues (1) independent review of the record of in camera
proceedings pertaining to discovery of information regarding an ongoing investigation is
required; (2) his conviction, based upon prior inconsistent statements of witnesses,
violated his right of confrontation; (3) his conviction is not supported by substantial
1 The record refers to the group variously as “Gutta Squad Mafia” and “Gutter Squad Mafia.” Our research has revealed the existence of a rap group called “Gutta Squad.” We also found an entry for “Squad Gutta Boyz” in the Urban Dictionary http://www.urbandictionary.com/define.php?term=squad+gutta+boyz [as of May 31, 2013], which contains the following definition: “A group of wannabee [sic] thugs from Ann Arbor, MI that sell [sic] marijuana, break into cars, rob drunk students and are constantly arrested by the police. They believe they are very clever and ‘hard’, [sic] however, they often cry like bitches when arrested.” Finally, Wiki Answers responds to the question, “What gangs are in Perris, CA?” by listing the Perris Crips and the Gutta Squad Mafia, along with the Perris Locs and the Frontline Perris Locs. (http://wiki.answers.com/Q/What_gangs_are_in_perris_ca [as of May 31, 2013.]) We therefore conclude that the correct spelling of the gang’s name is “Gutta.”
2 All further statutory references are to the Penal Code unless otherwise indicated.
2 evidence; (4) his due process rights were violated by the admission into evidence of a
witness’s photographic lineup identification; (5) his trial attorney was ineffective for
failing to object to allegedly coerced statements made by a witness who identified
defendant as the shooter; (6) reading CALCRIM No. 223 constituted reversible error
because it shifted the burden of proof; (7) reading CALCRIM No. 224 misstated the
prosecutor’s burden of proof and constituted structural error for instructing the jury it
must determine whether defendant was innocent as opposed to not guilty; and (8)
defendant’s sentence on count 2 should be modified to conform with the oral
pronouncement. We remand for resentencing on count 2, but otherwise affirm.
BACKGROUND
Prosecution Evidence
On December 5, 2009, Sean Harper and Shonna Minnifield hosted a party at their
residence for Tyshonna Smith, their high-school-aged daughter, on Arrow Creek Drive in
the City of Perris, California. Frederick Morehouse came to the residence to drop off his
nephew and his ex-girlfriend’s brother, but stayed to help search youngsters coming into
the house for weapons. The party began at approximately 8:00 p.m. and there was a DJ
playing dance music.
Morehouse was outside the house with Sean and Shonna, along with Sean’s cousin
Lamar Little and Lamar’s girlfriend or wife, Catalina. Morehouse marked the hands of
attendees who paid a $2 cover charge. People were dancing inside the house. Some
members of the Gutta Squad, a street gang in Perris, were present at the party.
3 Jared D., the victim, was the last person to arrive at the party; he came alone in a
white car, paid his cover charge, and went inside the house. After a few minutes, Jared
came right back out.
At some point, the adults at the party became aware of some yelling down the
street. Two or three Black males were on the sidewalk approximately seven houses
down, yelling “Fuck Gutta Squad” and “Where you all from?” Sean Harper yelled out
that there was none of that going on, that it was a kids’ party, and directed party-goers to
go inside the house.
Jared D. exited the gate, and shortly afterwards the adults outside heard several
gunshots. The adults ran towards the house to make sure everyone was all right when
they heard the shots. They made everyone get down and away from the windows. The
DJ cut the music everyone waited till they did not hear any more shots. Four people left
the party in a gray car after the shots were heard. When the car left, they saw a body in
the street. Jared D. had been shot.
Louis Soto, who lived on the same street as the house where the party was held,
was on the phone inside his house when he heard the shots and looked out the window.
He saw a person standing in the street with what appeared to be a gun in his hand. He
also saw two or three people running. The person holding the gun appeared to be
African-American and wore a hoodie. At approximately the same time as Louis Soto
made his observations, Erasmo Ulloa was driving to his home on Arrow Creek Drive
from work. He was stopped at a stop sign at the corner of Arrow Creek Drive and Plum
4 Leaf when he saw four or five kids running in front of him. Because two of them had
already run past his car, Ulloa was only able to observe two of the youths, but discerned
they were African-American. Subsequently, he saw a body in the street just south of his
residence, outside the house where the party had been held.
The police responded to the scene of the shooting within minutes and found the
victim nonresponsive. Persons still in attendance at the party were directed not to leave.
Police investigators interviewed everyone who was at the party. They learned that the
defendant, known to Tyshonna by the nickname “Dro,” had been at the party with three
or four friends. Defendant had arrived at around 9:00 p.m., but Tyshonna did not see him
or his companions after about 11:00 or 11:30 p.m. According to Tyshonna, defendant
wore a black hoodie at the party.
Detective Campos was assigned as the co-case agent to investigate the murder of
Jared D. He interviewed party goers who were still at the residence and learned that there
were guys down the street yelling toward the house at some point before the shooting.
He also learned the name of a person called “Dro” from Tyshonna and another party
guest. Tyshonna described for Detective Campos what “Dro” was wearing, and
mentioned he was wearing a hoodie. Tyshonna told the detective that Laishansie Red
was outside and could give him more information.
The day after the shooting, Jerome Williams called Rickey Brown and Raymond
Stewart in a three-way call from the jail. In that call, Rickey Brown tells Williams that
something happened the previous night, and explains that someone came through “dissin’
5 the hood last night . . . . So one of the little homies got on him and did what he did, and
cuz dead.”
Detective Campos interviewed Laishansie Red, and then interviewed Houston
Stalling at his home on December 21, 2009. Detective Campos learned that Houston
Stalling hung out with Gutta Squad, associating with members of that gang. Detective
Campos, using a ruse, informed Stalling that he had learned from independent sources
that Stalling was seen running down the street with others, although no one had actually
revealed this information. Eventually Stalling admitted that he had left the party with
three other people, Rudy, Rickey, and Raymond. Stalling also informed Campos that he
had heard someone down the street say, “fuck Perris, fuck Naps, fuck Gutta, and fuck
PMV.”3
Detective Campos felt that Stalling was withholding information, so he
communicated to Stalling that he was a suspect. Campos was familiar with a person
named Clarence Brown, who was known as Rudy, but Clarence Brown was in custody at
the time of the shooting. During the interview, Stalling gave different conflicting
versions of the events of the night of the shooting. Initially, Stalling said he left the party
alone; then he said he left with Rudy, Rickey and Raymond, but that none of them were
involved in the shooting; finally, he said that Rudy was the shooter. Stalling was
consistent in describing what he and Raymond Stewart were wearing, but he changed the
3 “PMV” refers to Perris Maravilla, a Hispanic gang.
6 descriptions of what Rickey and Rudy were wearing. After this interview, Campos
wanted to interview the three people mentioned by Stalling: Raymond Steward, Rickey
Brown and Rudy.
Detective Campos interviewed Raymond Stewart on December 23, 2009. Stewart
informed the detective that after the party, he went to Andre’s house and described where
Andre lived. Detective Campos went to that location and found Andre’s residence on
January 12, 2010. The residence was defendant’s residence. Detective Campos
interviewed defendant at the time and was informed by defendant that he was aware of
the shooting but that he was not at the party; instead, he was at his girlfriend Alicia’s
residence, although three people came to his house after the party: Raymond and two
others whom defendant did not know. Campos prodded defendant for the names of the
other two individuals, but defendant refused; he informed the detective that he had
provided Raymond’s name because he had already spoken to Raymond. Defendant also
indicated that he formerly associated with Gutta Squad, but that he had stopped.
Detective Campos reinterviewed Houston Stalling on January 12, 2010, at his high
school, in order to obtain more information about “Rudy.” Campos took an array of
photographs, and included defendant’s picture based on Stalling’s description of Rudy,
Tyshonna’s statement that defendant was at the party, and Raymond Stewart’s statement
that they had gone to defendant’s house after the party. When he showed the
photographs to Stalling, Campos asked Stalling whom he recognized. Stalling pointed to
defendant’s picture and said he knew defendant from camp.
7 On February 8, 2010, Detective Campos reinterviewed Rickey Brown, known as
“Sneak”, who had been detained after he was located during a vehicle stop. During this
interview, Campos confronted Brown with a statement he had made during a recorded
telephone conversation with Jerome Williams, a leader of Gutta Squad, in which Brown
stated that “Somebody came through dissing the hood and little homie did what he did.”
Rickey Brown’s versions of the events changed. First he said that he and “Dro”
were walking to the party when someone in a white car yelled out “Perris Locs Crips”
and started shooting at the party. Then he said that somebody yelled out “fuck Gutta
Squad.” Rickey Brown initially told Campos he had gone to the party with his cousin
Alicia, but later he said he went to the party with Dro, Houston and Raymond, also
known as “Third.” Rickey Brown denied that any other Gutta Squad members were
present at the party, so he knew the people yelling the challenges were talking to Brown
and his group. He then told the detective that the males yelling challenges had guns.
Detective Campos pressed Rickey by explaining that there was a difference
between killing somebody and defending oneself, urging Rickey to explain what
happened. He asked if any of his group had a gun that night, which Rickey denied. Then
Detective Campos asked him, “[W]hat if one of those people told me different?” Later,
when Rickey protested that he was being honest, Campos asked him why would Dro tell
him something different. When Rickey pressed him about what Dro had said, Campos
asked, “[W]hat would you say, if he told me that you shot the boy?” By this time,
Campos had heard from two different people that Dro was at the party and suspected
8 there might not be a Rudy.
Rickey Brown was reinterviewed the following day, February 9, 2010. Rickey
told investigator Angulo that he did not have anything to do with the crime, but that his
“homey” did it. Rickey referred to “YG” as being with them the whole time and, when
asked, explained that YG was Dro. Rickey revealed that when the other males yelled
“fuck Gutta Squad,” he wanted to leave because they were outnumbered, but Dro shot.
Rickey and Third (Raymond Steward) ran, Dro came afterwards, and they all went to
Dro’s house. Rickey Brown indicated that he saw Dro as he shot the boy, and that he
(Rickey) found out later that the boy had died. Detective Campos showed Rickey the
photographic lineup and asked Rickey if he recognized anybody as the shooter that night.
Rickey pointed to the picture in the number 6 position and said, “It was him.”
After this interview with Rickey Brown, Detective Campos reinterviewed Houston
Stalling on February 10, 2010. Campos informed Stalling that someone had given up a
name. He also informed Stalling that he knows there was no Rudy. The detective
showed Stalling the same photograph array he had shown Stalling on January 12, 2010,
and asked him to identify the shooter, telling him that one of his buddies said he was not
going to go down for something that someone else did. Stalling acknowledged that the
shooter’s photograph was in the lineup. After the detective suggested that if Stalling was
being untruthful it was because he had something to hide, Stalling pointed to photograph
number 6, Dro. Defendant was subsequently arrested. While in custody, authorities
intercepted a letter written by defendant addressed to his father acknowledging his
9 association with a gang.
The gang expert explained that Jerome Williams, also known as “J Roc,” was a
documented member of Gutta Squad and had been convicted of three gang-predicate
crimes. Raymond Stewart was an active, documented member of Gutta Squad, and he
went by various monikers, including “Deuce,” “Little Red,” and “Third.” Rickey Brown
is an active, documented member of Gutta Squad, and his moniker is “Sneak.”
Gutta Squad comprises a group of African-American males with ties to Los
Angeles gangs, including 111 Neighborhood Crips, Six Deuce East Coast Crips, and
Grape Street Crips. The primary activities of Gutta Squad consist of committing
robberies, burglaries, and assaults. The color purple and Colorado Rockies baseball caps
are associated with Gutta Squad. In Perris, there are three different Crip gangs: Perris
Locs, Neighborhood Perris Crips, and Gutta Squad Mafia. The various Crip offshoot
groups do not necessarily get along, but they “squad up” when there are problems with
the homegrown Perris gangs.
The gang expert also reviewed a letter defendant had written to his father in which
defendant admitted he was “doing this banging stuff” after he “walked on,” without
getting “put on,” as well as field identification cards showing defendant hung out with
Gutta Squad members at Copper Creek Park, known as Gutta Squad turf. Based on all
the information available, the gang expert opined that defendant was an active member of
Gutta Squad.
10 Defense Evidence
Laishansie Red, who knew defendant from school, was at the party. She saw
Houston Stalling outside the house with four other males, but she did not see defendant.
While outside the house, a white boy came up to the gate in front of the house and asked
if anyone from Gutta Squad was there. One of Houston’s companions said, “Yeah, we’re
right here.” The white boy then said, “fuck Gutta Squad.” Approximately 10 to 12
minutes later, shots were heard.
Frank Rodela, the defense investigator, interviewed Alicia Hymes at her home in
Perris. Alicia admitted she had attended the party on December 5, 2009. Alicia stated
she saw Rickey Brown but she did not see defendant there. According to Alicia, three
days after the shooting, Rickey sent her a text message in which he admitted he shot the
boy. Previously, Alicia had said nothing to Rodela about Rickey confessing. Rodela
interviewed Laishansie Red, who recognized Raymond Stewart but not from the party,
and did not recognize Rickey Brown as being at the party. Rodela also interviewed
Houston Stalling who stated he had lied to Detective Campos so the detective would
leave him alone.
Defendant’s brother, Tykee Hall, and his sister, Tatiana Hall, both testified that
defendant was at home all night on the date of the shooting and no one came by. Both
siblings had gang ties but denied that defendant was a gang member. Jerome Williams,
known as J Roc, formerly dated defendant’s sister and enjoyed a leadership role in Gutta
Squad. He denied that defendant was a member of Gutta Squad although Jerome had
11 invited him to become a member. However, since defendant’s arrest, Jerome developed a
protective relationship towards defendant, who was like a brother.
Criminal Proceedings
Defendant was charged with murder (§ 187, subd. (a), count 1) and with active
participation in a criminal street gang. (§ 186.22, subd. (a).) In connection with the
murder count, it was further alleged that defendant had discharged a firearm causing
death (§ 12022.53, subd. (d)), and that the crime was committed for the benefit of a
criminal street gang. (§ 186.22, subd. (b).) Defendant was tried by a jury and convicted
of both counts; the jury also returned true findings on both enhancement allegations.
Defendant was sentenced to an aggregated term of 50 years to life (25 years to life for
count 1, plus 25 years to life for the gun discharge enhancement; count 2 was stayed
pursuant to section 654). Defendant timely appealed.
DISCUSSION
(1) Review of the Sealed Record of In Camera proceedings.
Prior to trial, the case was added onto the calendar to resolve discovery issues.
The defense informed the court that at the last minute, she received a call regarding
additional discovery that the same type of weapon as was used in the murder was
discovered on two of the People’s witnesses and requested disclosure of the identity of
the witnesses. The People acknowledged that two prosecution witnesses were suspects in
a crime where a firearm was discharged, but did not disclose the names of the suspects to
the defense. The prosecutor requested an in camera hearing to disclose to the court what
12 she knew because of the ongoing investigation. The court conducted an in camera
hearing and sealed the record. Afterwards, the court indicated there was no relevant
information to be turned over to the defense.
On appeal, defendant argues that we should independently review the sealed
transcript of the in camera proceedings to determine if the trial court’s ruling was correct.
The People do not oppose the request. We have reviewed the sealed reporter’s transcript
of the in camera hearing and found nothing discoverable.
(2) The Introduction of Prior Inconsistent Statements Did Not Violate
Defendant’s Sixth Amendment Right of Confrontation.
During defendant’s trial, several witnesses, most of whom were members of the
street gang, Gutta Squad Mafia, testified in a manner that was inconsistent with prior
statements made to law enforcement investigators. As a consequence, the People
proffered evidence of the prior inconsistent statements, as well as other evidence pointing
to defendant’s guilt. Defendant argues his conviction must be reversed because it was
entirely based on out-of-court statements, in violation of his Sixth Amendment right to
confrontation and his Fourteenth Amendment right to due process of law. We disagree.
We agree that both the Constitution of the United States and the California
Constitution guarantee a criminal defendant the right to confront the witnesses against
him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right of confrontation is
not absolute, however, and in appropriate cases must bow to other legitimate interests in
the criminal trial process. (People v. Carter (2005) 36 Cal.4th 1114, 1172, and cases
13 therein cited.) The Confrontation Clause guarantees only “‘“an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.”’” (United States v. Owens (1988) 484 U.S.
554, 559 [108 S.Ct. 838, 98 L.Ed.2d 951].)
The opportunity to confront and cross-examine is not denied when a witness
testifies to his current belief but is unable to recollect the reason for that belief.
(Delaware v. Fensterer (1985) 474 U.S. 15, 20 [106 S.Ct. 292, 88 L.Ed.2d 15].) The
opportunity is not denied when a witness feigns forgetfulness and is impeached with her
statements to police. (People v. Homick (2012) 55 Cal.4th 816, 861; see also People v.
Perez (2000) 82 Cal.App.4th 760, 766.)
Evidence Code section 1235 expressly authorizes the admission of prior
inconsistent statements to impeach a witness’s testimony during an evidentiary hearing.
Such statements are also admissible to prove the truth of the matters asserted therein.
(People v. Green (1971) 3 Cal.3d 981, 985.) The Confrontation Clause is not violated by
admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a
witness and subject to full and effective cross-examination. (California v. Green (1970)
399 U.S. 149, 158, 161 [90 S.Ct. 1930, 26 L.Ed.2d 489].)
Defendant relies on In re Miguel L. (1982) 32 Cal.3d 100, which reversed a
conviction for burglary where the conviction was based solely on recanted out-of-court
statements by his accomplice. In Miguel L., the repudiated statement was one made by
an accomplice, and the court’s decision rested on the holdings of People v. Gould (1960)
14 54 Cal.2d 621, 631, and In re Johnny G. (1979) 25 Cal.3d 543, 547-548. Gould had held
that an extrajudicial identification that cannot be confirmed by an identification at trial is
insufficient to sustain a conviction in the absence of other evidence connecting the
defendant with the crime. (Gould, at p. 631.)
In Miguel L., the court acknowledged that a conviction may stand if the
extrajudicial statement was reiterated by the witness under oath at a preliminary
examination or other judicial proceeding, and there was evidence from which the
factfinder could credit the witness’s prior testimony over his or her failure to confirm the
extrajudicial statements at trial. (In re Miguel L., supra, 32 Cal.3d at p. 106.) However,
the court followed the reasoning of Gould, adding that under section 1111, a conviction
may not be based solely on the uncorroborated testimony or statements of an accomplice.
(Id. at p. 109.)
Gould, which required in-court corroboration of an out-of-court identification, was
overruled in People v. Cuevas (1995) 12 Cal.4th 252, 257, 274-275, holding that the
sufficiency of an out-of-court identification to support a conviction was to be judged by
the substantial evidence test. Subsequently, in People v. Williams (1997) 16 Cal.4th 153,
248, the California Supreme Court extended Cuevas to out-of-court statements by an
accomplice, questioning the continued validity of Miguel L., on the issue of whether an
accomplice’s extrajudicial statements were insufficient to prove that the defendant
committed the crime.
Defendant does not contend that his conviction was improperly grounded on the
15 testimony of accomplices and lacked independent corroboration, within the meaning of
section 1111. His own out-of-court statements showing he attempted to suborn perjury
would provide independent corroboration of any accomplice testimony in such a
circumstance.
Instead, his argument is that the admission of prior inconsistent statements of
certain witnesses violated his confrontation rights and rendered his trial unfair. Given the
abundance of decisional authority by the United States Supreme Court and the California
Supreme Court, which have expressly held that the admission of prior inconsistent
statements does not violate a defendant’s confrontation rights, we conclude the
conviction was constitutionally proper.
(3) Defendant’s Conviction Is Supported By Substantial Evidence.
In a related argument, defendant argues the conviction must be reversed because
the prior inconsistent statements do not constitute solid evidence. We disagree.
In reviewing a sufficiency of evidence claim, our role is limited; we determine
whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) On
appeal, we must view the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact the trier could reasonable
deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is
unwarranted unless it appears that upon no hypothesis whatever is there sufficient
substantial evidence to support the conviction. (People v. Mason (2006) 140 Cal.App.4th
16 1190, 1199.)
Substantial evidence must be of ponderable legal significance, reasonable in
nature, credible and of solid value. (People v. Concha (2008) 160 Cal.App.4th 1441,
1451.) While we must ensure that the evidence is reasonable, credible and of solid value,
it is the exclusive province of the judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. (People v.
Smith, supra, 37 Cal.4th at p. 739.) On review, we do not reevaluate the credibility of
witnesses or resolve factual conflicts; rather, we presume the existence of every fact in
support of the verdict that could reasonably be inferred from the evidence. (People v.
Booker (2011) 51 Cal.4th 141, 173, citing People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We conclude there was substantial evidence to support the verdict.
Notwithstanding the admission of prior inconsistent statements of defendant’s gang
associates as substantive evidence, there was other evidence pointing to his guilt. For
instance, defendant requested that his mother communicate to his girlfriend that she
should ask the girl who hosted the party to say he was not in attendance. The jury was
permitted to draw an inference of guilt from this statement. (CALCRIM No. 371; People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Other evidence, completely
independent of the testimony of defendant’s fellow gang members, placed him at the
17 party at the time of the shooting and provided a motive for the shooting.4
The jury could reasonably consider the prior inconsistent statements along with
the other evidence and conclude that defendant shot the victim. There is substantial
evidence to support the verdict.
(4) Defendant’s Due Process Rights Were Not Violated b the Admission of
Stalling’s Identification of Him From the Photographic Lineup.
Defendant contends that the trial court erroneously admitted evidence that
Houston Stalling picked his photograph from a photographic lineup because the lineup
was unduly suggestive. He points to the fact that Stalling was shown more than one
photographic lineup, that defendant’s photograph was included in both, and that Stalling
testified he felt pressured to identify defendant. We disagree.
Due process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the resulting
identification was also unreliable. (People v. Yeoman (2003) 31 Cal.4th 93, 123.)
Convictions based on eyewitness identification at trial following a pretrial identification
by photograph will be set aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384 [88
S.Ct. 967, 19 L.Ed.2d 1247].) The defendant has the initial burden of establishing that
4 In his letter to his father, defendant stated he was getting shot at by Perris Locs, PMV, South Side Mafia, and Sex Cash.
18 the pretrial identification was suggestive. (People v. Nguyen (1994) 23 Cal.App.4th 32,
38; People v. Cooks (1983) 141 Cal.App.3d 224, 305.) Defendant must show “unfairness
as a demonstrable reality, not just speculation.” (People v. DeSantis (1992) 2 Cal.4th
1198, 1222.)
A procedure is unfair if it suggests, in advance of the identification by the witness,
the identity of the person suspected by the police. (People v. Carter (2005) 36 Cal.4th
1114, 1164.) Whether the identification technique employed in a given case violates due
process of law depends on the totality of the circumstances surrounding it. (Stovall v.
Denno (1967) 388 U.S. 293, 301-302 [87 S.Ct. 1967, 18 L.Ed.2d 1199]; People v. Arias
(1996) 13 Cal.4th 92, 168.) However, there is no requirement that a defendant in a
lineup, either in person or by photograph, be surrounded by others nearly identical in
appearance. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052, citing People v.
Wimberly (1992) 5 Cal.App.4th 773, 790.) Nor is the validity of a photographic lineup
considered unconstitutional simply because one suspect’s photograph is more
distinguishable from the others in the lineup. (Brandon, at p. 1052, citing People v.
Johnson (1992) 3 Cal.4th 1183, 1215-1218.)
Frequently, claims of suggestiveness involve a photo spread where the
characteristics of the photograph of the defendant are such that attention is immediately
drawn to that photograph. For instance, a six-man lineup consisting of only one Oriental,
the defendant, would be suggestive, as would a lineup including only one black-haired
person among light-haired persons, or a tall defendant among short men, or a youthful
19 defendant in a lineup with men over 40 years of age. (See United States v. Wade (1967)
388 U.S. 218, 232 [87 S.Ct. 1926, 18 L.Ed.2d 1149].)
Even where the procedure is determined to be suggestive, the identification may
still be found to be reliable under the totality of circumstances. (People v. Nguyen, supra,
23 Cal.App.4th at p. 39; People v. Contreras (1993) 17 Cal.App.4th 813, 820.) Once it is
established that an identification procedure used was unnecessarily suggestive, exclusion
of identification testimony is required only if the suggestive identification procedures
tainted the in-court identification. (People v. Yeoman, supra, 31 Cal.4th at p. 123.)
Showing photographs of the defendant in separate lineups conducted at different times
does not necessarily render the lineup procedure unduly suggestive. (Id. at pp. 124-125.)
The question is not whether there were differences between the lineup participants,
but whether anything caused the defendant to stand out from the others in a way that
would suggest the witness should select him. (People v. Avila (2009) 46 Cal.4th 680,
698.) We independently review the trial court’s ruling that the pretrial identification
procedure was not unduly suggestive. (Id. at pp. 698-699.)
Defendant does not point to any particular characteristic of the photographs of
other participants in the photographic lineup, or the photograph of the defendant, that
made the lineup impermissibly suggestive. Nor does defendant point to any
characteristic of the photographs that would draw attention to his photograph. Instead, he
argues that the defendant’s photograph was the only photograph that was included in
each of the different photo arrays, and that the officers pressured or badgered Stalling
20 into making an identification. However, while the officers attempted to garner Stalling’s
cooperation and honesty after Stalling attempted to mislead them in the investigation, the
conduct of the detective did nothing to communicate that the photograph of the defendant
was the suspect, aside from the fact that defendant’s photograph was included in the
separate arrays, shown to Stalling on separate occasions, a month apart.
None of the authorities cited by defendant holds that showing a defendant’s
photograph in different arrays, without more to suggest that the defendant is the suspect,
is unduly suggestive. Further, where the witness does not identify the defendant in court
as the person who did the shooting, the photographs could not have tainted the later in-
court identification. (See People v. Alexander (2010) 49 Cal.4th 846, 902.)
In the present case, Stalling was interviewed four times and was first shown a
photographic lineup in which defendant’s photograph was included during the third
interview. When asked if he recognized anyone, Stalling indicated he recognized
defendant from camp, but denied defendant was at the party. A month later, Stalling was
interviewed for the fourth time, on February 10, 2010. During this interview, the
detective confronted Stalling with his false statement attributing the shooting to a person
named Rudy. Stalling was shown another photographic lineup containing a photograph
of defendant and Stalling acknowledged that the shooter was in the lineup, but refused to
say which person it was. When the detective went through each photograph individually,
asking if that person was the shooter, Stalling finally agreed that the sixth photograph, the
picture of the defendant, was that of the shooter.
21 There was nothing inherently suggestive about showing a witness two separate
photographic lineups containing defendant’s photograph, a month apart. Further, there is
little likelihood that the photographic lineup procedure tainted the identification because
the witness was well acquainted with the defendant and could have identified him
without the aid of a photographic lineup. Fearful of being labeled a “snitch,” there was
greater risk that Stalling would point to one of the other photographs in order to throw
suspicion away from his fellow gang member.
The policy of excluding identifications made from suggestive lineups is to prevent
misidentification at trial. Although there is no requirement that the witness making the
identification be an unknown stranger to the defendant, as defendant argues, there is less
risk of “irreparable misidentification” where the witness is acquainted with the defendant
prior to viewing the lineup and refuses to identify him at trial. Given that the defendant
had the burden of showing that it was the photographic lineup procedures that led to
Stalling’s selection of his photograph as that of the shooter, as opposed to Stalling’s
familiarity with defendant and knowledge of defendant’s participation in the crime, he
has not met that burden here. Instead, the real issue is not whether the lineup procedure
itself was suggestive, but whether Stalling’s statement that the defendant was the shooter
was involuntary, as the product of badgering and pressure by the detectives, which we
address separately, post.
22 (5) Defendant’s Trial Counsel’s Failure to Object to the Allegedly Coerced
Statements Made by a Witness, Identifying Defendant As the Shooter, Was
Reasonable.
Defendant asserts he was “victimized” by his trial counsel’s failure to object or
move to exclude the extra-judicial identification by Rickey Brown of defendant as the
shooter, which he asserts constituted ineffective representation of counsel. He argues he
had standing to challenge the admission of coerced statements made by third parties and
that his counsel was ineffective for failing to object to Rickey Brown’s statement that “it
was Dro,” and Houston Stalling’s identification of defendant’s photograph in the
photographic lineup, identifying defendant as the shooter.5 We disagree.
To demonstrate that his right to effective assistance of counsel was violated,
defendant must satisfy a two-pronged test: He must show (1) performance below an
objective standard of reasonableness by his attorney, and (2) prejudice sufficient to
establish a reasonable probability he would have obtained a more favorable result in the
absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688,
693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There is a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. (People v.
Lucas (1995) 12 Cal.4th 415, 436-437.) Tactical decisions are generally not deemed
5 Defendant also raises this issue in a companion petition for writ of habeas corpus, case No. E056530, which we deny by a separate order.
23 reversible, and counsel’s tactical decisions must be evaluated in the context of all the
available facts. (Strickland, at p. 690.)
The failure to object to the admissibility of evidence is normally considered a
matter of trial tactics. (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Roberts
(2011) 195 Cal.App.4th 1106, 1131.) Where there is no sound basis for an objection,
counsel’s failure to object cannot establish ineffective assistance of counsel. (People v.
Lewis (2001) 26 Cal.4th 334, 359.)
Defendants have limited standing to challenge the trial testimony of a witness on
the ground that an earlier out-of-court statement made by the witness was the product of
police coercion. (People v. Williams (2010) 49 Cal.4th 405, 452.) In fact, defendants
generally lack standing to complain that a police interrogation violated a third party
witness’s Fifth Amendment privilege against self-incrimination, or Sixth Amendment
right to counsel, nor may a defendant complain that law enforcement officers violated a
third party witness’s Fourth Amendment rights. (Williams, at p. 452, citing People v.
Badgett (1995) 10 Cal.4th 330, 343.)
A defendant may assert a violation of his or her own rights to due process of law
and fair trial based upon third party witness coercion; however, the rule refers to
situations in which the defendant can establish that trial evidence was coerced or
rendered by the prior coercion and that admission of this evidence would deprive the
defendant of a fair trial. (People v. Williams, supra, 49 Cal.4th at pp. 452-453, citing
24 People v. Jenkins (2000) 22 Cal.4th 900, 966, 969; People v. Badgett, supra, 10 Cal.4th
at pp. 347, 348.)
At trial, neither Stalling nor Brown inculpated the defendant, so defendant’s due
process rights at trial were not violated by inculpatory testimony induced by prior
coercion. Nevertheless, we examine the asserted coercion of each third party witness
separately to determine whether defense counsel’s failure to object to admission of
involuntary statements of a witness to impeach that witness at trial implicated defendant’s
right to a fair trial.
a. Stalling’s Identification of Defendant
The argument that Stalling’s identification of defendant as the shooter is made
without any authority or analysis of the conduct of the officers during the interview. We
assume defendant intended to refer to conduct described in his previous argument,
regarding the admissibility of Stalling’s identification. However, defendant has not
sufficiently established that Stalling was coerced, by improper interrogation methods, to
identify defendant as the shooter. At most, we discern that Stalling was dishonest in his
earlier interviews, identifying a fictional person named “Rudy” as the shooter, causing
detectives to reinterview him in an effort to uncover the truth.
A photographic lineup was shown to Stalling at the third interview, where Stalling
implicated a person named “Rudy,” who later turned out to be fictional. Defendant’s
photograph was included in this array because investigation had revealed that defendant
was present at the party with three other Gutta Squad members, including Stalling. A
25 fourth interview was conducted after the investigators realized there was no “Rudy.”
Defendant’s photograph was included again, because he was known to have attended the
party (through Tyshonna’s pretrial statement) and to be a member of Gutta Squad,
leading officers to suspect he was the person Stalling had referred to as “Rudy.” Campos
was aware that the real “Rudy,” who was a member of Gutta Squad, was incarcerated on
the date of the shooting.
It was Stalling’s own dishonesty which led to the successive interviews after the
falsehoods were discovered. Confronting a witness with his false statements in an
attempt to solve a murder is not “coercion.” Nor did counsel fail to object to the
admission of the identification evidence, as it was the subject of an in limine motion.
Further, because Stalling had a failure of recollection at trial, his prior inconsistent
statements were admissible as impeachment. (Evid. Code, § 1235.) Even statements
made by a defendant, obtained in violation of the Miranda are admissible against him as
impeachment. (Harris v. New York (1971) 401 U.S. 222, 225-226 [91 S.Ct. 643, 28
L.Ed.2d 1].)
The Williams rule permits a defendant to assert a violation of his or her own right
to due process of law and a fair trial based upon third party witness coercion if the
defendant can establish that the trial evidence was coerced or rendered unreliable by prior
coercion. (People v. Williams, supra, 49 Cal.4th at pp. 452-453.) The burden rests upon
the defendant to demonstrate how the earlier coercion directly “‘impaired the reliability
of the testimony.’” (Id. at p. 453, quoting People v. Badgett, supra, 10 Cal.4th at p. 348.)
26 Defendant does not argue that Stalling’s out-of-court statements, made during interviews
with detectives, directly impaired the reliability of his in-court testimony.
There was no basis upon which competent counsel could have objected to the
admission of the extra-judicial identification, particularly where it was offered as
impeachment (prior inconsistent statement) when Stalling, who was granted immunity,
testified that he did not recall defendant being at the party.
b. Rickey Brown’s Statement that “It Was Dro”
Defendant’s argument respecting the failure to object to Rickey Brown’s
extrajudicial statements points to several circumstances. First, after Rickey Brown was
admonished for his interrogation, he was told that defendant had fingered him as the
shooter in order to elicit information about the shooting. Defendant acknowledges there
was nothing improper about that. He points to the detective’s statements, admonishing
Rickey that as a member of the group of which the shooter was a part, he could be held
responsible for murder, unless Rickey explained the circumstances of the shooting. On
more than one occasion, the detective gave Rickey an opportunity to provide mitigating
information to avoid prison. Detective Campos frankly informed Rickey he was being
detained as a suspect in the crime.
Eventually, Rickey asked why he was being asked questions as if he had done
something, and Campos reminded Rickey that the group he was with did something
wrong. Campos gave Rickey some time to think and left the interview room to get a
cigarette for Rickey. When the interrogation resumed, Campos reminded Rickey that he
27 knew it was one of the four members of his group. He told Rickey, “It’s your life, man.
You . . . need to think about you.” At that point, Rickey asked to call his mother so she
could call a lawyer. However, rather than discontinue the questioning, Campos
continued his questions, eventually eliciting Rickey’s statement that, “It was him,” while
pointing to Dro’s (defendant’s) photograph.
Defendant asserts that the continued questioning after Rickey made the request to
contact his mother, violated Rickey’s rights under Miranda v. Arizona (1966) 384 U.S.
436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Rickey had previously waived his right to remain
silent and agreed to speak with the detective. Of course, a suspect may revoke his
Miranda waiver if he unambiguously asserts his right to silence before questioning
ceases. (People v. Martinez (2010) 47 Cal.4th 911, 948, citing People v. Stitely (2005) 35
Cal.4th 514, 535; People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another
point in People v. Doolin (2009) 45 Cal.4th 390, 421.) Assuming Rickey intended to
revoke his waivers, his request to speak to his mother did not unambiguously require the
cessation of an interrogation. (People v. Nelson (2012) 53 Cal.4th 367, 383.) However,
Rickey’s reference to his mother contacting an attorney may constitute an ambiguous
request for counsel which Campos should have clarified. (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 217, citing People v. Farnam (2002) 28 Cal.4th 107, 181.) The
detective should have attempted to clarify whether Rickey intended to assert his right to
remain silent at that point.
28 As to the question of whether Rickey’s statements were the product of coercive
police conduct, we observe that courts have prohibited only those psychological ploys
which, under all the circumstances, are so coercive that they tend to produce a statement
that is both involuntary and unreliable. (People v. Williams, supra, 49 Cal.4th at p. 436,
quoting People v. Smith (2007) 40 Cal.4th 483, 501.) Police deception does not
necessarily invalidate an incriminating statement. (Id. at p. 505.) Courts have found no
improper police coercion where an officer falsely tells a suspect that his accomplice has
been captured and confessed (Frazier v. Cupp (1969) 394 U.S. 731, 739 [89 S.Ct. 1420,
22 L.Ed.2d 684]), where the officer implied he could prove more than he actually could
(People v. Jones (1998) 17 Cal.4th 279, 299), or where officers repeatedly lied, insisting
they had evidence linking the suspect to a homicide. (People v. Thompson (1990) 50
Cal.3d 134, 167.)
Here, the tactics employed by the detectives were no more coercive than the
examples provided above which courts have found do not invalidate an incriminating
statement. Thus, even assuming that Rickey’s reference to his mother contacting an
attorney constituted an invocation of his Miranda rights, the statements made to the
detective were properly admissible for impeachment purposes. (Harris v. New York,
supra, 401 U.S. at p. 224; People v. Peevy (1998) 17 Cal.4th 1184, 1191-1202.)
Competent counsel, aware of such holdings, would realize that an objection would
be futile, and would reasonably decide not to object. There was no ineffective assistance
of counsel.
29 (6) CALCRIM No. 223 Does Not Shift the Burden of Proof.
Defendant argues that the court committed reversible error by reading CALCRIM
No. 223 to the jury. He asserts that this instruction shifted the burden of proof and
undermined the presumption innocence by informing the jury that direct and
circumstantial evidence are acceptable types of evidence to prove or disprove elements of
a charge. Defendant argues that his language implied that the defendant was required to
disprove the charge, in violation of his due process rights. We disagree.
CALCRIM No. 223 does not mention the burden of proof, which was addressed in
a separate instruction. (See CALCRIM No. 220, which told the jury the presumption of
innocence requires the prosecution to prove the defendant guilty beyond a reasonable
doubt.) Nor does it state that a defendant must prove or disprove anything. “Reasonably
read, the instruction cautions only that neither direct nor circumstantial evidence should
be accorded greater weight simply because it is direct or circumstantial evidence.”
(People v. Anderson (2007) 152 Cal.App.4th 919, 930.) As such, it does not “undermine
the reasonable doubt standard or presumption of innocence.” (People v. Smith (2008)
168 Cal.App.4th 7, 18, citing People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187;
Anderson, at pp. 931-934; see also People v. Golde (2008) 163 Cal.App.4th 101, 117-
118.)
Defendant has failed to sustain his burden of establishing that the language of
CALCRIM No. 233 shifts the burden of proof.
30 (7) CALCRIM No. 224 Does Not Misstate the Prosecutor’s Burden of Proof.
In a separate argument, defendant argues that CALCRIM No. 224 instructed the
jury to determine whether defendant was innocent rather than not guilty, misstated the
prosecution’s burden of proof and constituted structural error. He also argues that there
is a conflict between CALCRIM Nos. 220 and 224. We disagree.
Defendant’s arguments fail to cite any of the published cases which have affirmed
the constitutional correctness of the instructions. His arguments have been rejected on
multiple occasions. (People v. Ibarra, supra, 156 Cal.App.4th at pp. 186-187; People v.
Anderson, supra, 152 Cal.App.4th at pp. 931-934; see also People v. Smith, supra, 168
Cal.App.4th at p. 18.) We agree with the conclusions of these authorities and do not find
any discussion of former CALJIC instructions to be helpful.
(8) Defendant Must Be Resentenced on Count 2 Where the Court’s Intention Is
Unclear from the Record.
At sentencing, the court imposed a term of 25 years to life for count 1. Referring
to the enhancements to count 1, the court stated “As to the 186.22(b)(5) allegation, along
with the 12022.53(d) allegation having been found true, that shall add an additional 25
years to life, for a total sentence of 50 years to life.”6 As to count 2, the court stated, “I
6 The term for a gang enhancement alleged in connection with a violent felony (§ 667.5, subd. (c)), is a term for life, from which the offender shall not be paroled until a minimum of 15 calendar years has been served. (§ 186.22, subd. (b)(5).) As such, there is no separate enhancement for the gang allegation, which merely establishes the [footnote continued on next page]
31 shall choose the preferred mid term of 3 years in state prison.” The court then stayed the
term for count 2 pursuant to section 654. On appeal, defendant argues that the court
intended to impose a sentence of two years for count 2, since that is the midterm.
Respondent disagrees because the abstract reflects the three-year term orally pronounced
by the court.
Where sentencing error involves the failure to state reasons for making a particular
sentencing choice, including the imposition of consecutive terms, reviewing courts have
declined to remand cases where doing so would be an idle act that exalts form over
substance because it is not reasonably probable that the court would impose a different
sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) However, resentencing is
appropriate where the trial court’s intention is not clear from the record, to allow it to
clarify its intention. (See People v. Jackson (1985) 171 Cal.App.3d 609, 616-617; see
also People v. Gamble (2008) 164 Cal.App.4th 891, 901 [record did not disclose whether
trial court would have exercised its discretion to impose a concurrent term for one count
if it had known it had such discretion, requiring remand].)
We cannot say with certitude whether the court intended to impose the middle
term (two years), or whether it intended to impose the three-year term it orally imposed.
We therefore remand for clarification.
[footnote continued from previous page] minimum parole eligibility period to the indeterminate life term. (People v. Lopez (2005) 34 Cal.4th 1002, 1007-1011; People v. Sok (2010) 181 Cal.App.4th 88, 94.)
32 DISPOSITION
The convictions are affirmed. The matter is remanded for resentencing on count
2, and in all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P J.
We concur:
McKINSTER J.
CODRINGTON J.