People v. Mohammed

Decision Date29 September 2011
Docket NumberA128190
PartiesTHE PEOPLE, Plaintiff and Respondent, v. LABARAN K. MOHAMMED, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
LABARAN K. MOHAMMED, Defendant and Appellant.

A128190

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed: September 29, 2011


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. H43001A)

Defendant was convicted following a jury trial of second degree robbery (Pen. Code, § 211), and given the upper term of five years in state prison.1 In this appeal he claims that his trial counsel was incompetent for failing to present expert opinion testimony on eyewitness identification evidence, and challenges the trial court's statement of reasons in support of the imposition of an upper term sentence for robbery. We conclude that defendant has not demonstrated inadequate assistance of counsel on appeal, and the trial court satisfactorily stated reasons for imposing the upper term sentence. We therefore affirm the judgment.

STATEMENT OF FACTS

The victim of the burglary offense, Satnam Singh, testified that he was working as manager and cashier at Hayward Food and Liquor on Hesperian Boulevard at 5:45 p.m. on July 19, 2006, when a man he positively identified as defendant entered the store with

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a gun in his right hand. Defendant was wearing a white T-shirt and a cap. His face was partially covered with a cloth.2

Defendant pointed the gun at Singh and demanded that he "give him the money." Singh removed "all the twenty-dollar bills" and placed them on the counter. At defendant's command, Singh did the same with the rest of the bills in the cash register. As defendant was standing at the counter the cloth covering his face "gradually came down," so Singh glimpsed his eyes and nose on the right side of his face. Then, as defendant left the store with the money he "turned around" and Singh was able to see "almost the entire face."

Defendant left the store and entered the front passenger seat of a "black-colored car" parked outside. Another man was in the driver's seat. As the car drove away Singh observed and wrote down the license plate number. He called the owner of the store, and "dialed 911" to report the robbery.

Once the Hayward Police Department received a description of the suspect, the vehicle, and the vehicle license plate number from Singh, the car registration was traced to Jamal Williams at 4246 Miramonte Way in Union City. A Union City police officer drove to the 4246 Miramonte Way address at around 6:30 p.m., and observed a black vehicle parked in front of the residence that matched the description given by the victim. Two people were standing near the vehicle. After back-up officers arrived, a "felony car stop" was initiated, and the two occupants of the vehicle, defendant and Williams, were detained.

Hayward police officers arrived with Singh at the scene of the detention soon thereafter. Singh identified with certainty both the detained vehicle and defendant as the man who entered the store and robbed him. Singh was not able to identify Williams as the driver of the vehicle, although he testified that Williams "appeared" to be the same person who drove the black car. Cash in the amount of $235 was found in the glove compartment of the detained black car.

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DISCUSSION

I. Trial Counsel's Failure to Present Expert Eyewitness Identification Testimony.

Defendant complains that his trial counsel "should have employed an expert witness" to challenge the victim's identification, which he characterizes as "suspect." He maintains that Singh's identification testimony was "decisive" in the case. Defendant adds that in light of the lack of any significant corroborating evidence, and the "questionable" nature of the victim's "cross-racial identification under the stress of being robbed at gunpoint, utilizing an identification expert witness was critically necessary" to bolster the defense of mistaken identification. Therefore, counsel's failure to "produce an identification expert to challenge" Singh's testimony "constitutes ineffective assistance of counsel under both the United States and California Constitutions."

The principles that govern defendant's claim of "constitutionally inadequate representation are settled." (In re Lucas (2004) 33 Cal.4th 682, 721.) "To establish a claim of inadequate assistance, a defendant must show counsel's representation was 'deficient' in that it 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel's deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant." (People v. Frye (1998) 18 Cal.4th 894, 979.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.)

"In addition, the defendant must establish that counsel's actions were not based on a strategic decision. [Citation.] ' " '[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." ' [Citations.]" (People v. Ramirez (2011) 193 Cal.App.4th 613, 621-622.) " ' "To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which

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it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him." ' [Citations.] Where the record is silent as to the reasons for particular actions of trial counsel, an appeal is not the proper vehicle for determining competency." (Id. at p. 622.) " 'Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)

The present case falls squarely within the category of those which fail to discount a tactical reason for trial counsel's decision to omit testimony from the defense case. The decision to present or object to admission of evidence is inherently tactical and will seldom establish incompetence. (People v. Stanley (2006) 39 Cal.4th 913, 955; People v. Scott (1997) 15 Cal.4th 1188, 1223; People v. Freeman (1994) 8 Cal.4th 450, 490-491; People v. Frierson (1991) 53 Cal.3d 730, 747.) Here, competent counsel may have decided that the expert testimony was subject to rebuttal or cross-examination that could prejudice the defense. The prospect of damaging rebuttal is a necessary consideration in trial counsel's decision whether to present defense evidence. (See People v. Gonzalez (2006) 38 Cal.4th 932, 960; In re Ross (1995) 10 Cal.4th 184, 212; People v. Gonzalez (1990) 51 Cal.3d 1179, 1251.) Counsel may have weighed the benefit of expert identification evidence against the possible disadvantages of focusing...

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