PEOPLE v. OBALADE

No. C075276.

THE PEOPLE, Plaintiff and Respondent, v. RODERICK JASON OBALADE, Defendant and Appellant.

Court of Appeals of California, Third District, Sacramento.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

HULL, J.

Defendant Roderick Jason Obalade appeals following conviction on three counts of second-degree robbery (Pen. Code, § 211; unless otherwise set forth, statutory references that follow are to this Code), each with personal use of a firearm (§ 12022.53, subd. (b)), and one count of possession of rock cocaine (Health & Saf. Code, § 11350, subd. (a)). Defendant contends: (1) The trial court infringed on his Sixth Amendment right to counsel by limiting him to written communications with trial counsel during trial; (2) a pretrial identification procedure was impermissibly suggestive; and (3) this court must reduce his felony drug conviction to a misdemeanor pursuant to Proposition 47 adopted by voters November 4, 2014, after his conviction and while this appeal was pending. We conclude defendant forfeited the first two points by failing to raise them in the trial court, and Proposition 47 requires defendant to first pursue a statutory remedy in the trial court. We accordingly affirm the judgment.

Facts And Proceedings

The trial evidence showed that defendant committed three armed robberies of three businesses in the span of about 90 minutes.

The First Robbery

Around 9:00 p.m. on January 9, 2013, a large Black male wearing a hooded sweatshirt entered a Popeye's Chicken restaurant on El Camino Avenue in Sacramento, holding a tote bag and a black semiautomatic gun. He pointed the gun at an employee (the Popeye clerk or victim) and said, "Give me the money." The victim removed the till from a cash register and placed it in the robber's bag. The robber placed the gun at the victim's neck. The victim removed from another cash register a till containing cash and credit card receipts. The robber left. Store surveillance video showed his movements and clothing.

Police officer David Montoya went to the restaurant. He did not speak to the clerk initially, but other employees gave a description of the robber as a Black male, about 5'8" tall, heavy build, wearing a black sweatshirt.

Officer Montoya returned to Popeye's with a six-person photo lineup including defendant's photo. The clerk was not there. Four other Popeye employees looked at the photos. None picked defendant's photo (number three). Two employees selected photo number five; one employee selected photo number six; and one employee picked photo number four.

Later that evening, after defendant was apprehended outside a nearby residence, Officer Montoya contacted the Popeye victim and asked him to attend a field "show-up." The victim agreed, though he was reluctant because the robber knew where the victim worked. Before viewing the person, the victim was told that police had found the cash register tills and a bag on the person, prompting the victim to say, "Oh, yeah, that's him then" — before seeing the suspect. The police also told the victim that his robber had also robbed someone else, and there were other victims who could identify him. The officer acknowledged at trial that telling a victim about evidence was not necessarily good police practice.

In a videotaped field show up, the victim from the patrol car saw defendant on the street lit by streetlights and police lights and said, "I'm pretty sure that's him"; it looked like the robber's body type and face type "[u]nless he shaved. Did he shave that quick or was it like that? I don't know." The officer had just read to the victim a standard admonishment that the person he was about to see may or may not be the subject observed committing the crime, and the person the victim was about to see may have different clothing, may have cut his hair, "[h]e may have shaved. All that stuff." The victim asked, "since today"? The officer said he was not saying it happened, he was just reading from "somethin' I gotta tell you."

The victim identified the two cash register tills, one of which had a telltale chip, as having been taken during the robbery. The victim also identified a black sweatshirt, a black Beretta handgun, and a brown tote bag as having been used by the robber.

The Popeye victim testified at trial but was not asked if he recognized the robber in the courtroom. Instead, the video of the field show up was played for the jury, and the victim testified, "I said it in the video. I was almost sure it was him." At trial the victim said he could not identify the tills as being from Popeye's. And at trial he said he thought the bag used in the robbery was bigger than the one he saw at the field show up.

The Second Robbery

The second robbery occurred around 10:00 p.m. at an AM/PM store on Northgate Boulevard. The man entered holding a black semiautomatic gun and a bag, as shown in store surveillance video played for the jury. He approached the counter and told the clerk (the Northgate clerk), "Don't say shit. Put the money in the bag." The robber told a customer at the counter, "You too. . . . All of it." After the clerk placed cash from one register in the robber's bag, the robber demanded money from two other registers and said, "You think I'm playing? You think I won't bust you? You think this is a cap gun?" The robbery took less than a minute. In the 911 call, the clerk told police the robber was a Black man in his 20s, between 5'5" and 5'8" tall, weighing between 220 and 260 pounds, wearing a black hoodie. The clerk gave a similar description at trial, adding that the robber had a thin mustache and wore sunglasses and black sneakers.

The clerk testified he did not want to go to a field show up the night of the robbery because, "I fear retaliation." But he went. At trial the clerk testified he recognized the person at the show up as the robber based on his facial features, including his thin mustache and cheekbones. The parties stipulated a peace officer would testify that at the show up the clerk said he was not sure if the person was the robber, and when dropped off back at the store the clerk said he was not sure on the height but the person looked like the guy who robbed him. The clerk on cross-examination testified that at one point he was unsure because the person on the street was wincing from the bright lights.

In court, the clerk identified defendant as the robber shown in store surveillance video. Having recalled seeing the robber in the store the day before the robbery, the clerk in court identified defendant as the person shown in store surveillance video from the day before the robbery. In court the clerk also identified defendant as the person the clerk had identified as the robber at the field show up. The clerk also identified defendant as the robber in court. The clerk testified his identifications of defendant as the robber in court were based in part on the videos and show up and also on recognizing defendant as the robber who robbed the store that night.

The Third Robbery

Around 10:30 p.m., a Black man about six feet tall in a hooded sweatshirt, sunglasses, and black shoes with red around the bottoms, entered an AM/PM store on Orchard Lane holding a duffle bag and a gun. He pointed the gun at the clerk (the Orchard clerk) and said, "Open the drawer, give me the money." The clerk gave the robber about $400 in cash from the cash registers. The robber left. The clerk followed him outside the store, then went back inside and called 911. The clerk told police the gun appeared to be a .9-millimeter Beretta.

Police did not disclose any evidence before the show up. Viewing the illuminated individual from the rear seat of a patrol car about 30 feet away, the Orchard clerk said, "Yeah, I think that's him." The video of the show up was played for the jury. The Orchard clerk also identified defendant as the robber in court.

Defendant's Arrest

Police were able to apprehend defendant because a good citizen, who was pumping gas outside the Orchard Lane AM/PM, saw a man inside the store emerge with a bag and get into the driver's seat of a car parked on the street. The citizen did not get a good look at the man's face and could not identify defendant as that man in court. The clerk came out of the store, appearing panicked or scared, with his hands up, watching the man. The citizen suspected a robbery, jumped in his car, and followed the car as it drove away. He got close enough to read the license plate number, called 911, asked if there had been a robbery, and gave the license number to the police. The police determined the second digit was "S" rather than "5" as reported by the caller, because California licenses on sedans usually have a number followed by three letters followed by three numbers. The car was registered to a woman at a Las Palmas Avenue address. A prior police report had linked defendant to that vehicle and that address. Police were waiting at that address when defendant drove the car to that address around 11:15 p.m. His physical description and clothing matched that of the robber, and he was wearing black sneakers with red bottoms as reported by one of the victims.

An officer looked inside the car, saw a gun and a brown bag inside, and arrested defendant. He had $896 in cash in his jeans pocket. Officers searched the car and found a black .40 caliber Beretta handgun on the passenger seat with four live rounds of ammunition. They also found a black sweatshirt, sunglasses, a tan cloth bag containing $574 in cash, a wallet with defendant's identification, and keys to the residence on the car's key ring.

Officers searched the residence and found two cash register drawers on the dining room table, both of which contained receipts from Popeye's. In a bedroom containing men's clothing, police found on a nightstand a small box with 11 wrapped pieces of rock cocaine weighing a total of 1.08 grams, and a laser sight for a handgun.

Verdict and Sentencing

The jury found defendant guilty on all counts and found true the firearm allegations.

The trial court sentenced defendant to 24 years and four months in prison as follows: The upper term of five years for the first robbery count, plus 10 years for the firearm use; consecutive one year (one-third of the middle term) plus three years four months for the firearm on each of the other two robbery counts; and consecutive eight months for the drug offense (one-third of the middle term).

Discussion

I

Communicating With Trial Counsel During Trial

Defendant maintains the trial court's directive that he communicate with his trial counsel only in writing, not verbally, during the course of the trial, violated his Sixth Amendment right to counsel (U.S. Const., amend. VI). We conclude defendant forfeited the point by failing to raise it in the trial court, and even if not forfeited he fails to show a Sixth Amendment violation warranting reversal.

A. Background

On August 29, 2013, before beginning voir dire, the trial court ascertained that the defense would not be pursuing its motion to suppress evidence seized from defendant and the car, because defendant was on searchable probation at the time of the search. As the court tried to turn to other matters, defendant said, "I don't understand what's going on." Defense counsel and defendant conferred, after which defendant again told the court, "I don't understand." As court and counsel discussed defendant's rejection of a plea offer, defendant interjected, "I don't understand what's going on." The trial court said, "Hold on one second." Defendant repeated, "I don't understand." The trial court explained they were putting on the record the prosecution's offer, making sure it was conveyed to defendant, and finding out what defendant wanted to do with the offer. The trial court asked, "Do you understand that?" Defendant said, "No" and said, "May I address the Court? I don't understand."

The trial court again explained about putting the offer on the record. Defendant said he understood that but did not understand why the lawyers say he was still on probation. The court indulged in further discussion of the probation issue. Defense counsel said he would make copies of the minute orders from the prior case for defendant. The court then attempted to move to motions in limine but the prosecutor reminded the court that they had not yet finished putting the plea offer on the record.

After the jury was selected and before beginning presentation of evidence to the jury, the trial court on September 5, 2013, handled some housekeeping matters, went off the record, and then came back on the record and told defendant, "I'm going to ask that any conversations you have with your attorney be done at the break. We're going to be bringing a jury in now. We are going to commence the jury trial in this matter. I don't want any of this going on." The judge did not state on the record what "this" meant.

When the trial court asked if defendant understood, he asked to speak and said, "Me and my attorney are having a conflict of interest, ma'am. [¶] May I please file a Marsden motion off the record before the jury comes in? I have new evidence right here, on this case, that states that I'm not on probation. I have new evidence. Today, I understand we're viewing evidence. I would like to present this evidence." Defendant added, "I'm asking you just to at least hear me out. Because if I don't say nothing, then I'm just going to sit here and be watched [sic], if I don't say nothing." The trial court asked the prosecutor to leave and heard and denied defendant's Marsden motion, the sealed transcript of which is part of the record on appeal.

Back on the record again, the court said, "We're going to bring in the jury and begin the trial. [¶] The same comment to you, Mr. Obalade. No talking to your attorney during — when he is in the course of the trial. That's what the paper — that's what your notes are for. Okay? Take notes. Give them to him. [¶] Mr. Tejeda [defense counsel], just — [¶] And you can communicate that way until we have a break, until you have a moment. All right?" The record shows no response. The judge then had the jury brought in.

Neither defendant nor his trial counsel objected in the trial court at that time or at any time.

B. Analysis

Defendant's opening brief anticipated the People's argument in their respondent's brief that defendant has forfeited the Sixth Amendment challenge by failing to raise it in the trial court. Defendant invokes the general presumption against implied waiver of certain fundamental constitutional rights in certain circumstances. (E.g., Brookhart v. Janis (1966) 384 U.S. 1, 4-5 [16 L.Ed.2d 314] [defense counsel did not have the power to enter a guilty plea (in effect) inconsistent with the defendant's expressed desire not to plead guilty]; Johnson v. Zerbst (1938) 304 U.S. 458 [82 S.Ct. 1461] [trial court lacks jurisdiction if the accused has not competently and intelligently waived the right to counsel, and remand was required on a habeas corpus petition for the district court to determine whether the prisoner had met his burden].) We explain the general presumption does not apply here, and defendant's Sixth Amendment challenge presents factual questions for which any void in the record is attributable to defendant's failure to raise the issue in the trial court, and defendant has thus forfeited the matter.

Although courts have sometimes used "forfeiture" and "waiver" interchangeably, the two are different. Waiver is the intentional relinquishment or abandonment of a known right, whereas forfeiture is the (perhaps inadvertent) failure to make timely assertion of a right. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 (Simon), citing United States v. Olano (1993) 507 U.S. 725, 733 [123 L.Ed.2d 508, 519].) Even constitutional rights may be forfeited. The purpose of the general doctrine of waiver "`"`is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .'" [Citation.] "`No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' . . ." [Citation.] [¶] "The rationale for this rule [is that]. . . . `"In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'" [Citation.]' (Fn. omitted; see [citations].)" (Simon, supra, 25 Cal.4th at p. 1103.)

Forfeiture applies to federal constitutional claims in criminal cases in state court where, as here, the claim implicates a factual matter and the defendant argues for the first time on appeal that the record lacks facts that would support the trial court's action. (People v. Tully (2012) 54 Cal.4th 952, 978-980.) Tully held a criminal defendant forfeited certain Fourth Amendment challenges to the trial court's denial of a suppression motion to the extent he did not assert those grounds in the trial court, e.g., a claim that the duration of a traffic stop was excessive. (Ibid.) "Constitutional claims raised for the first time on appeal are not subject to forfeiture only when `the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.' [Citations.] However, `[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.' [Citation.]" (Ibid.; italics added.)

The Sixth Amendment right to counsel in a criminal case includes the defendant's right to communicate and consult with his attorney during trial. (Perry v. Leeke (1989) 488 U.S. 272, 284 [102 L.Ed.2d 624] (Perry v. Leeke); Geders v. United States (1976) 425 U.S. 80, 88 [47 L.Ed.2d 592] (Geders).)

However, "[n]ot every restriction on counsel's time or opportunity . . . to consult with his client or otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel." (Morris v. Slappy (1983) 461 U.S. 1, 11 [75 L.Ed.2d 610] [where original deputy public defender was hospitalized and substitute counsel was ready for trial, trial court's denial of defendant's motion for continuance of trial did not violate Sixth Amendment].)

A presumption of prejudice is not warranted where the trial court does not deny assistance of counsel altogether. (People v. Hernandez (2012) 53 Cal.4th 1095, 1110-1111.) Hernandez held there was no presumption of prejudice where the trial court ordered defense counsel not to discuss with the defendant sealed declarations and transcripts of plea agreements of codefendants. (Id. at pp. 1100-1101.) The court was concerned that those persons would be vulnerable to retaliation. (Id. at p. 1101.) "The trial court's order implicated only that aspect of the Sixth Amendment right to counsel defining the right to a fair trial guaranteed through the due process clause. Because a violation of that aspect of the Sixth Amendment is not `complete' until the defendant is prejudiced, an inquiry into resulting prejudice is required unless the circumstances are so likely to have undermined the reliability of the finding of guilt as to justify a presumption of prejudice. . . . [N]ot all unwarranted interference with a client's ability to consult with counsel justifies a presumption of prejudice." (Id. at pp. 1110-1111.) "Geders . . . explain[ed] that the Sixth Amendment is violated when the restriction on access to counsel was so profound as to create an inference that the defendant's attorney was unable to perform the essential functions of trial counsel. . . . The order here, which at most prevented defense counsel from fully discussing the anticipated testimony of a single prosecution witness, albeit one key to the prosecution, cannot reasonably be characterized as the denial of the assistance of counsel altogether." (Id. at p. 1109; orig. italics.) Therefore, the burden was on the defendant to meet the standard for ineffective assistance of counsel. (Id. at p. 1111.)

Geders, supra, 425 U.S. at pages 82 and 88, held the Sixth Amendment right to counsel was impaired by a trial court order that defense counsel not talk to the client "about anything" during an overnight recess after his direct examination and before cross-examination. In contrast, Perry v. Leeke, supra, 488 U.S. at page 284 held the right to counsel was not impaired by a court order that defense counsel not talk to the client during a 15-minute recess in the middle of his testimony. (Id. at pp. 280-281 [a defendant who becomes a witness does not have the right to consult with counsel during the testimony].)

In other examples, facts may justify a blanket prohibition on a pretrial detainee's telephone calls from jail, despite the effect of hampering attorney-client discussions, where evidence indicates the detainee has misused telephone privileges to solicit murder of a witness. (People v. Clark (2016) 63 Cal.4th 522, 549-550.) A trial court's refusal to permit defense counsel to interrupt a bench conference between court and counsel for the purpose of consulting with the client did not violate the Sixth Amendment right to counsel in United States v. Vasquez (11th Cir. 1984) 732 F.2d 846, 848 (Vasquez), citing Geders, supra, 425 U.S. 80.) "[C]ourts have reversed convictions in cases in which the defendant was denied entirely the opportunity to consult with counsel during some stage of the court proceedings. [Citations.]" (Vasquez, supra, 732 F.2d at p. 848; italics added, citing Geders, supra, 425 U.S. 80.)

Where, as here, the trial court did not entirely prohibit attorney-client consultation but merely told defendant to communicate with counsel in writing while court was in session, we take into account that "[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." (Illinois v. Allen (1970) 397 U.S. 337, 343 [25 L.Ed.2d 353] [in extreme situation, disruptive defendant may be removed from courtroom].) Allowing defense counsel to interrupt court proceedings at any time in order to confer with the client "would impose obviously unacceptable burdens of delay and inconvenience on the court and opposing counsel." (Vasquez, supra, 732 F.2d at p. 848.)

Thus, defendant's Sixth Amendment claim on appeal raises factual questions about the reason for restricting defendant to written communications with counsel during trial — for which the trial court was not asked to make a record (though the record suggests the reason). Defendant argues that the foregoing cases relied upon by the Attorney General are factually distinguishable from this case. But that is the point. Each case turns on its facts, and therefore defendant must raise the issue in the trial court to allow pertinent facts to be developed on the record. Indeed, defendant seeks to benefit from the factual void he himself created by arguing in his reply brief that we cannot consider whether the trial court had a good reason for the restriction because no reason is stated in the record on appeal. This is exactly the gamesmanship that the forfeiture doctrine is designed to avoid. (Simon, supra, 25 Cal.4th at p. 1103.)

Moreover, the record is not completely silent. We see on the record defendant's repeated interruptions before voir dire, which almost resulted in the prosecution's offer being omitted from the record but for the prosecutor reminding the trial court of it after the court detoured to address defendant's interruptions and then turned to motions in limine. We also have the benefit of the sealed transcript of the Marsden hearing held immediately before the trial court restricted defendant to written communications with counsel before bringing in the jury. Without disclosing the contents of the sealed transcript, our review of it satisfies us that the trial court could have stated reasons for the restriction on the record had defendant raised the issue in the trial court.

Defendant claims a case "actually on point" is Moore v. Purkett (8th Cir. 2001) 275 F.3d 685, which found a Sixth Amendment violation where the trial court told the defendant not to talk to counsel during trial but to communicate only in writing. (Id. at pp. 687-689.) There, however, there was no issue of forfeiture because the defendant did raise the matter in the trial court. Defense counsel asked the court to allow the defendant to talk with him quietly during trial because the defendant had difficulty communicating in writing due to a "`very limited ability to write.'" (Id. at p. 687.) Defense counsel argued the court's restriction denied his client's constitutional rights. (Ibid.) The appellate court found the restriction infringed on the right to counsel, because the defendant's limited writing skills were "uncontroverted." (Id. at pp. 688-689.) Moore is inapposite because here defendant made no record in the trial court of any manner in which the restriction on verbal communication infringed on his right to counsel.

Defendant seeks analogy in People v. Aguilar (1984) 35 Cal.3d 785, which held that the trial court's "borrowing" a non-English-speaking defendant's interpreter to function as a witness interpreter for the benefit of the court and jury when two prosecution witnesses were called to testify against the defendant, deprived the defendant of his "only" means of communicating with defense counsel during the testimony of those witnesses. (Id. at pp. 791-794 [violation of California Constitution's right to interpreter and federal Constitution's confrontation clause].) Although defense counsel could interrupt the proceedings for the interpreter to translate communications between the defendant and his lawyer, such a procedure would disrupt the trial and could prejudice the defendant in the eyes of the jury. (People v. Resendes (1985) 164 Cal.App.3d 812, 814-815, 817.) People v. Rodriguez (1986) 42 Cal.3d 1005, found any error harmless beyond a reasonable doubt where the court used one defendant's interpreter to translate for witnesses, while the other defendant's interpreter translated for both codefendants, and the witnesses spoke the same language as the defendants. (Id. at pp. 1009 & 1015, fn. 7.) Insofar as the absence of an interpreter implicates a defendant's right to consult counsel, reversal is required only where the breach has had a material effect on the regularity of trial. (Id. at p. 1011.) "`[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis.' [Citations.]" (Id. at p. 1013.)

Here, defendant had counsel and retained a means of communicating with counsel at all times, and defendant fails to show any actual deprivation of the right to counsel.

This is not one of the three situations identified by the United States Supreme Court that involve circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. (Bell v. Cone (2002) 535 U.S. 685, 695 [152 L.Ed.2d 914] [addressing claim of ineffective assistance of counsel].) First was the complete denial of counsel at a critical stage. (Ibid.) Second was where counsel entirely failed to subject the prosecution's case to meaningful adversarial testing. (Ibid.) Third was where counsel was called upon to render assistance under circumstances where competent counsel very likely could not. (Ibid., citing Powell v. Alabama (1932) 287 U.S. 45 [77 S.Ct. 158].) In Powell v. Alabama, six days before trial of a capital case the judge appointed "all members of the bar" to represent the defendants at arraignment with no provision for trial representation. On the day of trial, a lawyer from another state appeared in court expressing interest but stating he himself was unprepared for trial. The trial court nevertheless proceeded with the trial, directing that lawyer to represent the defendants, with whatever help the local bar could provide. (Id. at pp. 56-58.) The Supreme Court saw no need to evaluate counsel's actual performance, because the process was inherently unfair. (Ibid.) None of these three situations applies here.

We conclude defendant fails to show grounds for reversal based on the Sixth Amendment.

II

Pre-Trial Identification by Popeye Victim

A. Background

Before the Popeye victim saw the suspect at the show up on the street, police told the victim that they had "found the robber" and the cash register tills stolen from Popeye's. The victim, without seeing the suspect, said, "That's him then. Where is he right now?" The police also told the victim that the person had committed other robberies and had been seen by other witnesses.

Police then showed the Popeye victim, who was in the back seat of the patrol car, the suspect standing on the street illuminated by street lights and police lights. The victim said, "I'm pretty sure it's him," based on body type and face type (being Black), but asked if the suspect had shaved (a point referenced in the admonitions) because the victim thought something about the face was different but he could not say what. No evidence was adduced whether defendant had shaved that night. On cross-examination, the victim said he could not identify the tills as belonging to Popeye's and thought the bag used in the robbery was bigger than the bag at the show up.

B. Analysis

We decline defendant's imprecation that we abolish individual show ups as inherently unreliable. (People v. Ochoa (1998) 19 Cal.4th 353, 413 [single-person show up is not inherently unfair]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455].)

Defendant argues the Popeye victim's pre-trial identification of defendant as the robber at the field show up on Las Palmas Avenue was suggestive and tainted, violating his due process rights. Although defendant argues the suggestiveness tainted the victim's in-court identification, this victim was not asked to identify the robber in court. The victim testified he could not give any more specific description of the robber that night or in court.

We agree with the People that defendant forfeited his challenge to the identification by failing to object to it in the trial court. Defendant again improperly invokes inapposite authority requiring affirmative waiver.

A claim that evidence should have been excluded may be brought on appeal only if a specific objection was made in the trial court, even if the appellant claims a constitutional violation. (Evid. Code, § 353; People v. Redd (2010) 48 Cal.4th 691, 730; People v. Cunningham (2001) 25 Cal.4th 926, 989 [identification evidence].)

We reject defendant's back-up argument of ineffective assistance of counsel. To establish this claim, defendant must show both that counsel's performance was objectively unreasonable under prevailing professional norms, and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].) Whether or not to object at trial is largely a tactical question for trial counsel, and a case in which the mere failure to object would rise to such a level as to implicate the federal or state constitutional right to effective assistance of counsel would be an unusual one. (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313.) If the record sheds no light as to counsel's reason, we reject the defendant's claim of ineffective assistance of counsel unless trial counsel refused to provide an explanation when asked or there could be no satisfactory explanation. (Ibid.)

Here, an obvious tactical reason for counsel not to object was to allow the defense to present a theory, as it did, that improper handling of the investigation by the police tainted the evidence. Defense counsel emphasized the point during cross-examination of the victim, that police told the witness before the identification that they found the robber and the gun and he committed other robberies and other victims could also identify him. And defense counsel hammered the point home in closing argument, additionally telling the jury that in-field show ups are inherently unfair as compared to photo lineups that offer a choice of six possible suspects.

Defendant fails to show grounds for reversal based on the identification procedures.

III

Proposition 47

Defendant asks us to reduce his felony drug conviction (cocaine possession, Health & Saf. Code, § 11350, subd. (a)) to a misdemeanor and remand for resentencing pursuant to Proposition 47, which amended Health and Safety Code section 11350 to reduce the crime of simple possession to a misdemeanor. However, we agree with case law decided while this appeal was pending, that Proposition 47 does not authorize the Court of Appeal to remand for possible resentencing or to reduce a felony to a misdemeanor on direct appeal (of a conviction entered before Proposition 47 where the appeal was pending when Proposition 47 went into effect), but rather requires defendant, after the appeal is final, to pursue the statutory remedy (§ 1170.18) of asking the trial court to reduce the sentence, either in a petition to the trial court if the defendant is still serving his sentence, or in an application to the trial court if the defendant has already completed serving his sentence. (§ 1170.18; People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1257-1258 [ordered remand on different grounds]; People v. Shabazz (2015) 237 Cal.App.4th 303, 307-314.) "In enacting Proposition 47, `the voters set forth specific procedures for securing the lesser punishment to eligible persons.' . . . The conclusion `[t]hese are the sole remedies available under Proposition 47 for an accused sentenced prior to its effective date' [citation] is consistent with voter concern, expressed in section 3 of Proposition 47, that defendants with disqualifying prior convictions not have their felony convictions reduced to misdemeanors, and that a thorough review of criminal history and risk assessment of all convicted felons be conducted before potential resentencing [citation]." (Bradshaw, supra, 246 Cal.App.4th at pp. 1257-1258, citing Voter Information Guide.)

Disposition

The judgment is affirmed.

BLEASE, Acting P. J. and RENNER, J., concurs.


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