Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. LA055114. Elizabeth A. Lippitt, Judge. Affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Angelo Newsome appeals from the judgment entered following a jury trial in which he was convicted of three counts of second degree robbery, one count of attempted second degree robbery, assault by means of force likely to produce great bodily injury, assault with a firearm, and possession of cocaine base. Newsome contends that his trial attorney rendered ineffective assistance and that the abstract of judgment does not correctly reflect the sentence imposed. We affirm, but impose various omitted mandatory fees and penalty assessments and direct the trial court to amend the abstract of judgment.
FACTS
Counts 5 and 6
Graciano Torres testified that at about 12:20 p.m. on January 7, 2007, appellant approached him at his recycling business and demanded money. Appellant was dark-skinned and had a beard and mustache. He wore a dark-colored sweatshirt, with its hood pulled up, and carried a gun, which he put against Torres’s head. As Torres attempted to unbuckle his fanny pack, which contained cash, appellant struck Torres’s ear with the gun. Appellant took the fanny pack and Torres’s phone, and ran away. In March, the police showed Torres a six-pack of photographs, from which he selected appellant’s photograph. Although Torres was uncertain of his photo identification, he was more confident about his identification of appellant at the preliminary hearing and at trial.
Unless otherwise noted, all dates pertain to 2007.
Counts 1 and 2
Miguel Mendoza testified that at about 9:15 a.m. on February 24, he noticed appellant standing near the recycling center at which Mendoza worked. Appellant wore a dark sweatshirt with the hood pulled up. He watched Mendoza for a long time. Eventually, he approached Mendoza and pointed a gun at Mendoza’s stomach from a distance of about one foot. Appellant wore a bandana over the lower part of his face, beginning at the nostrils. Appellant demanded money from Mendoza, who handed over the money in his pockets. Appellant dragged Mendoza over to Mendoza’s truck, punched Mendoza above one eye, and made him lie on the seat while appellant searched the truck for money. Appellant found money in the glove compartment and a second person took a box of coins. Appellant also took Mendoza’s wallet and phone.
Mendoza checked messages on his stolen phone and traced one of the phone numbers to an address. Detective John Dunlop discovered that appellant’s driver’s license listed the same address. A “missed call” to the stolen phone was made from another number, which Dunlop called. He heard a message in which a man identified himself as “Spice,” which was appellant’s nickname.
On March 8, Mendoza selected appellant’s photograph in a six-pack of photographs. Although he was not completely certain of his photo identification, he believed it was the same person. Mendoza also identified appellant at trial.
Count 7
Fabiel Garcia testified that he was working at a recycling center on March 5 at about 10:50 a.m. when two men -- one Latino and one African-American -- approached him. Garcia moved so that he could see both men. The Latino man came closer and demanded money from Garcia. When Garcia replied that he had no money, the man told Garcia to look at his friend. Garcia looked at the other man, who stood slightly further away. The “friend” lifted his shirt to reveal a gun tucked in the waistband of his trousers and told the Latino man to hurry and to check whether Garcia had any money. Garcia identified appellant as the man with the gun. The Latino man punched Garcia in the stomach three times and again demanded money. Garcia looked at appellant, who showed him the gun again. Garcia tried to remember appellant’s facial features. He asked the men to wait until his boss arrived with the money. The men left. The incident lasted about 10 minutes. On March 20, Garcia selected appellant’s photograph in a six-pack of photographs. He also identified appellant at trial.
Counts 3 and 4
On March 7, numerous officers from the Los Angeles Police Department’s Special Investigations Section observed appellant grab Barbara McDowell in a bank parking lot, knock her to the ground, take a bank bag from her hands, and run away. McDowell was 64 years old and walked with a cane. Appellant discarded McDowell’s bank bag and a mobile phone when the police drove up alongside him about one-half block from the bank. The police found a plastic bag containing 4.12 grams of cocaine base during a search of appellant incident to his arrest.
The jury convicted appellant of the second degree robbery of victims Mendoza, McDowell, and Torres (counts 1, 3, and 5), the attempted second degree robbery of Garcia (count 7), assaulting Mendoza by means of force likely to produce great bodily injury (count 2), assaulting Torres with a firearm (count 6), and possessing cocaine base (count 4), as a lesser included offense. The jury found that appellant personally used a handgun in the commission of counts 1, 5, and 7 (Pen. Code, § 12022.53, subd. (b)) and counts 2 and 6 (§ 12022.5, subd. (a)). The jury also found that McDowell was over 60 years old. (§1203.09, subd. (f).)
Unless otherwise noted, all subsequent statutory references pertain to the Penal Code.
Appellant waived a jury trial on allegations he had suffered a prior serious or violent felony conviction within the scope of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term within the scope of section 667.5, subdivision (b). The trial court sentenced him to a total of 32 years in prison.
DISCUSSION
1. Ineffective assistance of counsel
Newsome contends that defense counsel rendered ineffective assistance by failing to request that the trial court instruct the jury with CALCRIM No. 315, which informs the jury that it must “decide whether an eyewitness gave truthful and accurate identification testimony,” and that in doing so, it should consider the following factors: whether the witness knew or had prior contact with the defendant; how well the witness could see the perpetrator; “the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, … duration of observation,” or other matters; the witness’s degree of attention; whether the witness was “under stress when he or she made the observation”; whether the witness gave a description and, if so, how closely the description matched the defendant; the amount of time between the event and the time when the witness identified the defendant; whether the witness was asked to pick the perpetrator out of a group; whether the witness ever failed to identify the defendant; whether the witness ever changed his or her mind about the identification; the witness’s degree of certainty when he or she made an identification; whether the witness and the defendant are of different races; whether the witness was able to identify other participants in the crime; whether the witness was able to identify the defendant in a photographic or physical lineup; and whether any other circumstances affected the witness’s ability to make an accurate identification. In addition, the instruction reiterates that the prosecution has “the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.”
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (In re Jones (1996) 13 Cal.4th 552, 561, quoting Strickland v. Washington (1984) 466 U.S. 668, 689.) Counsel’s exercise of discretion over trial strategy must nonetheless be founded upon reasonable investigation and preparation, and it must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Jones at pp. 564-565.)
We cannot conclude that defense counsel’s failure to request CALCRIM No. 315 was error, rather than a reasonable tactical decision. The trial court instructed the jury with CALCRIM No. 226, which informed the jury that it must assess the credibility of witnesses based upon factors including how well the witness could see, hear, or otherwise perceive the things about which the witness testified and whether the witness had made any prior consistent or inconsistent statements. Counsel may reasonably have believed that the more detailed list of specific factors pertaining to identification testimony would cause the jury to deem the victims’ identification testimony more credible. Most of the factors enumerated in CALCRIM No. 315 favored the prosecution. All of these crimes occurred in daylight; the victims were in close proximity to appellant; the interactions were relatively lengthy – especially in the crime against Mendoza; nothing indicates Mendoza was under any stress when he observed appellant “spying on” him; each of the victims identified appellant from a six-pack of photographs and at trial; not much time passed between the crimes and the dates Garcia and Mendoza identified appellant from photographs; nothing in the record indicates that any of the victims ever wavered in their identification of appellant or failed to identify him; none of the victims were uncertain of their identification of appellant at trial; and nothing in the record indicates that appellant did not match the description given to the police by Torres or any other victim. Factors that had any tendency to detract from the credibility of the victims’ identifications were obvious matters of common sense, e.g., the cross-racial nature of the identifications, the bandana obscuring part of appellant’s face during the robbery of Mendoza, the distance between appellant and Garcia, and Torres’s admitted focus upon the gun. Defense counsel was able to argue the unreliability of the identifications without CALCRIM No. 315 highlighting the numerous factors that enhanced the credibility of the identification testimony. In short, CALCRIM No. 315 “cuts two ways. While it may be of benefit to a defendant in a particular case, so may it enhance the prosecution’s argument in another. … We can readily see why a particular defendant may not want the trial judge to call to the jury’s attention the very factors a prosecutor thinks are the strong points of the state’s case.” (People v. Sanchez (1990) 221 Cal.App.3d 74, 77 [discussing predecessor instruction, CALJIC No. 2.92].) Accordingly, appellant has not overcome the strong presumption that counsel made a reasonable tactical decision to refrain from requesting CALCRIM No. 315. On this record, appellant’s ineffective assistance claim has no merit.
In this regard, we note that counsel informed the court that she did not want to cross-examine Garcia because she felt it would solidify his identification testimony, but did so only because appellant insisted.
2. Correction of abstract and imposition of fees and penalty assessments
Appellant contends, and respondent concedes, that the abstract of judgment incorrectly reflects a term of 4 years 4 months for the gun-use enhancement for count 5 and an aggregate term of 33 years, whereas the court imposed a term of 3 years 4 months for the enhancement and an aggregate term of 32 years. The record supports this contention. We therefore direct the trial court to amend the abstract to correct the error.
Respondent contends, and appellant concedes, that the abstract incorrectly reflects the sentence on count 7, which was a subordinate term, to be a full term consecutive sentence, whereas it should be a one-third term, “violent consecutive” sentence. The parties are correct, and we direct amendment of the abstract to correct this error.
Respondent further contends, and appellant concedes, that the abstract incorrectly reflects a court security fee of $120, instead of $140. The fee for conviction of seven counts is $140. (§ 1465.8.) The court’s minute order does not reflect imposition of the $20 fee with respect to count 7. We therefore imposed the fee for count 7 and direct the trial court to amend the abstract to correct this error.
Respondent also contends, and appellant concedes, that the trial court erred by failing to impose, with respect to count 4, the mandatory $50 laboratory analysis fee (Health & Saf. Code, § 11372.5) and the following penalty assessments: $50 (§ 1464), $10 (§ 1465.7), $15 (Gov’t Code, § 70372), $35 (Gov’t Code, § 76000), $5 (Gov’t Code, § 76104.6), and $5 (Gov’t Code, § 76104.7). We hereby impose these mandatory fees and assessments and direct the trial court to include them on the amended abstract of judgment. (People v. Talibdeen (2002) 27 Cal.4th 1151.)
DISPOSITION
The following mandatory fees and penalty assessments are imposed: $20 court security fee for count 7 (§ 1465.8), $50 laboratory analysis fee (Health & Saf. Code, § 11372.5), and penalty assessments of $50 (§ 1464), $10 (§ 1465.7), $15 (Gov’t Code, § 70372), $35 (Gov’t Code, § 76000), $5 (Gov’t Code, § 76104.6), and $5 (Gov’t Code, § 76104.7). The trial court is directed to amend the abstract of judgment to reflect these fees and assessments. The court is further directed to amend the abstract to reflect that the term imposed for the enhancement for count 5 was 3 years 4 months, the aggregate term is 32 years, and the enhancement for count 7 is a one-third, “violent consecutive” term. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.