APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. TA013892).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Shon Ramone Yokely (defendant) was convicted of murder in 1992. A federal district court granted defendant a writ of habeas corpus based on its findings that defendant's constitutional rights had been violated because his attorney was not present at a live line-up at which two eyewitnesses identified defendant as the murderer, and because his attorneys had failed to object to admission of the lineup and in-court identifications by those witnesses at defendant's trial.*fn2 At defendant's retrial, the trial court independently determined that the testimony of those two witnesses had origins independent of the tainted lineup, and admitted their identification testimony. Defendant again was convicted of murder.
We hold that the findings of the federal district court did not preclude the trial court from determining independently the admissibility of the in-court identification testimony of the two witnesses, and that there is substantial evidence to support the trial court's conclusion that the identification testimony of both witnesses had an origin independent of the illegal live lineup. We reject defendant's other claims of trial error, and we correct certain errors made by the trial court in sentencing defendant. As modified, we affirm the judgment.
A. Factual Background*fn3
Shortly after 7:00 p.m. on Sunday, July 7, 1991, Katie Jones*fn4 and her fourteen-month old daughter, Mitchshalae, arrived at their home in the Willowbrook area of Los Angeles. Katie and Mitchshalae lived at the house with Katie's mother. Katie's brothers John Paul and Albert were in the front yard.
Katie parked her car on the street in front of the house. She put Mitchshalae on the sidewalk and began to unload the trunk. Albert came out to help Katie; he lifted Mitchshalae over the fence separating the front yard from the street, and handed her to John Paul. John Paul set Mitchshalae down so she could walk into the house.
John Paul saw a blue Jeep Cherokee turn onto the street with loud music playing. The car approached slowly with the windows down. John Paul said he saw three African-American men in the car. The man sitting behind the driver was light skinned, had a dry jheri-curl hairstyle, and his ears "poked out" from his head. John Paul later identified that man as defendant, both from a photo lineup and in open court. Defendant put his arms and upper body through the window. He was holding a black firearm in both hands out in front of him. Defendant started shooting.
Albert was shot in the shoulder and fell to the sidewalk bleeding. As Katie went toward him, she was hit in the left leg above the knee. John Paul ran toward Mitchshalae, but he fell when a bullet struck him in the right leg and shattered his femur. He crawled toward Mitchshalae, who was lying on her back in the yard. Mitchshalae had been shot in the face. She was conscious, but John Paul could see her brains coming out of her mouth. He covered her with his body so that Katie could not see her. Before help arrived, Mitchshalae died.
The Jeep Cherokee sped away.
2. Testimony of Vernon Cox
In July 1991, Vernon Cox was 15 years old. Cox formerly was an associate of the Holmes Street Watts Crips street gang. Cox had a friend named Rance Hill who lived in an apartment near 125th Street and Western Avenue, approximately two miles from the Jones residence.
On July 7, Cox went to visit Hill. He found Hill leaving his apartment building in a blue Jeep Cherokee driven by Darrell Whitson. Whitson was a member of the 118th Street East Coast Crips street gang with the gang moniker Little D. The Crip gangs were rivals of Blood gangs. Cox joined Hill and Whitson in the Jeep.
The three young men drank cognac and beer and smoked marijuana at various locations before returning to Hill's apartment. Cox, who had not eaten, vomited; he felt better after doing so. Hill asked Cox and Whitson to leave the apartment for awhile so that he could be alone with a girl.
Cox and Whitson went back to the Cherokee. Whitson drove; Cox was in the passenger seat. Whitson drove east into territory controlled by the East Coast Crips. Whitson saw a friend of his and stopped the Cherokee. Cox identified Whitson's friend as defendant.
Whitson and defendant talked for a minute or two. Defendant asked Whitson what he was about to do. Whitson answered that they were going roll around to see if they could see some Bloods. Defendant said he wanted to come along. Defendant ran toward a house; when he came back, he appeared to be holding something in his waistband. Defendant got in the back of the Cherokee. Whitson drove generally southward, into territory controlled by the Athens Park Boys, a Blood street gang.
After a few minutes, the Cherokee turned left onto the street where the Joneses lived. Cox saw two men standing near the second house on the block. As they drove past the house, Cox heard three gunshots; he saw the men going down, and could not tell whether they were ducking or had been shot. Cox saw defendant leaning out of the driver's side rear window of the Cherokee, holding a black gun in both hands. They drove away, and dropped defendant off near where they had picked him up. Defendant said that he was going to put the rest of the bullets in his gun, but Whitson and Cox did not wait for him. They drove back to Hill's apartment building.
Two months later, the police came to Cox's home to interview him about the shooting. Cox cooperated. Cox identified Whitson as the driver of the Jeep from a photo lineup. He identified defendant as the shooter from another photo lineup, although he told police that he was "not 100 percent sure." Cox said that the picture of defendant looked most like the shooter. Cox explained that, at the time, he did not know defendant and did not know what might happen to him if he identified defendant, but he "tried his best to do what [he] thought was right." Cox testified that he had also identified defendant as the shooter at a court proceeding in 1992. Cox was granted immunity in exchange for his testimony.
John Paul Jones gave the police a description of the shooter in the hospital the night of the shooting. The description generally matched defendant's appearance. Police found the blue Jeep Cherokee the next day. The vehicle was traced to Whitson, who, it appears, implicated defendant. Police asked defendant to come to the police station voluntarily for questioning. As a deputy sheriff transported defendant to the station, defendant told the deputy that he was a former member of the 118th Street East Coast Crips, known by the gang moniker Calbo. A gang expert testified that the 118th Street East Coast Crips were deadly rivals of the Athens Park Boys, a Blood gang.
When interviewed by police, defendant stated that on the day of the murder, he had been at a motel on Western Avenue with a girl who was visiting the area from Arizona. Police checked the registration records of the motel and were unable to verify defendant's alibi. Defendant presented similar alibi testimony at trial. Defendant denied that he was a member of 118th Street East Coast Crips; he testified that he used to be associated with a different clique of the East Coast Crips based in Carson.
1. Original Trial and Writ of Habeas Corpus
In November 1992, a jury convicted defendant of one count of first degree murder (Pen. Code, § 187, subd. (a)),*fn5 three counts of attempted murder (§§ 664/187, subd. (a)), and one count of conspiracy to commit murder (§ 182, subd. (a)(1)). Defendant was sentenced to four consecutive life terms. His convictions were affirmed on direct appeal.
In May 2007, the United States District Court for the Central District of California (the district court), in adopting the Report and Recommendation of United States Magistrate Judge, granted defendant's petition for a writ of habeas corpus. The district court concluded that defendant's Sixth Amendment right to counsel was violated because defendant's attorney was not present at a live lineup at which Vernon Cox, John Paul Jones and Albert Jones identified defendant as the shooter. The district court further concluded that defendant had been denied the effective assistance of counsel at his trial because his trial counsel failed to object to the admission of testimony regarding the live lineup identifications, which testimony was excludable per se, and to the in-court identifications of defendant by Vernon Cox and John Paul Jones. The district court found that defendant was prejudiced by trial counsel's failure to object to the in-court identification by Vernon Cox because, based on the record of defendant's trial, the prosecution probably could not have established by clear and convincing evidence that Cox's identification of defendant was not tainted by the unconstitutional live lineup. The district court found that had Cox's identification been excluded, there was a reasonable probability that defendant would not have been convicted. The district court also found that had defendant moved to suppress the in-court identification by John Paul Jones, the prosecution probably would have been able to establish by clear and convincing evidence that the identification was not tainted by the illegal lineup.
2. Retrial and Sentencing
In June 2007, a new information was filed charging defendant with the murder of Mitchshalae Jones (§ 187, subd. (a)) (count 1), the attempted murders of Katie, Albert and John Paul Jones (§§ 664/187, subd. (a)) (counts 2, 3 and 4), and conspiracy to commit murder (§ 182, subd. (a)(1)) (count 5). The information specially alleged that defendant inflicted great bodily injury (GBI) on each of his victims by discharging a firearm from a motor vehicle (§ 12022.55), that a principal in the charged crimes was armed with a handgun (§ 12022, subd. (a)(1)), that defendant personally used a handgun (§ 12022.5, subd. (a)), and that defendant personally inflicted GBI on each of his victims (§ 12022.7, subd. (a)).
Defendant made a pretrial motion to suppress in-court identifications by Vernon Cox or John Paul Jones unless the prosecution proved the identifications had an origin independent of the illegal live lineup. At the hearing on the motion, defense counsel argued that the trial court was bound by the district court's finding that the prosecution could not establish that the identification by Vernon Cox had an origin independent of the illegal lineup. The trial court rejected defendant's contention on the ground that there had been no evidentiary hearing on independent origin either at defendant's original trial or before the district court on habeas corpus; the issue decided by the district court was whether defendant had been prejudiced at his original trial by the violations of his Sixth Amendment rights. Accordingly, the trial court ordered an evidentiary hearing to permit the prosecution to attempt to establish an independent origin for the identifications by both Vernon Cox and John Paul Jones. After hearing testimony from Cox, John Paul and defendant at the hearing, the trial court denied defendant's motion and ruled that the prosecution had established by clear and convincing evidence that the identifications of defendant as the shooter by both Cox and John Paul had an origin independent of the illegal lineup.
After the jury was selected but prior to opening statements, defendant elected to represent himself at trial and was granted pro per status by the trial court. The jury convicted defendant as charged on all counts. The jury found true the firearm enhancement allegations as to counts 1 through 4, and found true the GBI special allegations with respect to Mitchshalae (count 1) and John Paul (count 4) only. The trial court sentenced defendant to four consecutive life terms on counts 1 through 4.*fn6 The trial court imposed a term of 25 years to life on count 5, and stayed execution of the sentence on that count pursuant to section 654. Defendant timely appealed.
A. In-Court Identification Testimony
1. Relevant General Principles
Under the Sixth Amendment to the United States Constitution, a defendant has a right to have counsel present at a live lineup held after criminal proceedings have commenced. (United States v. Wade (1967) 388 U.S. 218, 236-237; Gilbert v. California (1967) 388 U.S. 263, 272-273; see also Moore v. Illinois (1977) 434 U.S. 220; Kirby v. Illinois (1972) 406 U.S. 682, 689; People v. Cook (2007) 40 Cal.4th 1334, 1352-1353.) When a live lineup violates a defendant's Sixth Amendment rights, evidence of identifications made at the lineup is subject to a per se exclusionary rule. (Gilbert v. California, supra, 388 U.S. at pp. 272-273; United States v. Wade, supra, 388 U.S. at pp. 236-237; see generally, 2 LaFave, et al., Criminal Procedure (3d ed. 2007) § 7.3(f), p. 926 (LaFave).) Nevertheless, a witness who participated in such an illegal lineup may identify the defendant at trial, provided the prosecution establishes by clear and convincing evidence that the in-court identification had an origin independent of the illegal lineup. (United States v. Wade, supra, 388 U.S. at p. 241; People v. Ratliff (1986) 41 Cal.3d 675, 689.)
2. Collateral Estoppel/Law of the Case
In assessing whether defendant was prejudiced by his counsel's ineffective assistance at his first trial, the district court examined the trial record "to determine whether the government would have been able to establish by clear and convincing evidence that the in-court identifications had a basis independent of the illegal lineup." After examining Cox's trial testimony, the district court concluded that the "record demonstrate[d] a reasonable probability that the prosecution would have been unable to establish by clear and convincing evidence that the in-court identification by Cox was independent of the illegal lineup." (Italics added.) The district court expressly acknowledged that "[b]ecause there was no motion to suppress filed, the prosecutor did not have the opportunity to establish the existence of an independent origin of the in-court identifications...."
Defendant argues that, under the doctrines of collateral estoppel and law of the case, the trial court was bound by the district court's conclusion and was precluded from determining independently whether Cox's in-court identification of defendant had an independent origin. We disagree.
Under the doctrine of collateral estoppel, a party cannot relitigate an issue of ultimate fact that was determined by a valid and final judgment in a previous lawsuit between the same parties. (Ashe v. Swenson (1970) 397 U.S. 436, 443 (Ashe); People v. Barragan (2004) 32 Cal.4th 236, 252-253 (Barragan); People v. Santamaria (1994) 8 Cal.4th 903, 912 (Santamaria).) In criminal cases, this doctrine is an aspect of the Fifth Amendment's protection against double jeopardy. (Ashe, supra, 397 U.S. at p. 445; Schiro v. Farley (1994) 510 U.S. 222, 232; Santamaria, supra, 8 Cal.4th at p. 912.) Collateral estoppel applies only if five requirements are met: (1) the relevant issue must be identical to that decided in the prior proceeding; (2) the issue actually must have been litigated in the prior proceeding; (3) the issue necessarily must have been decided in the prior proceeding; (4) the decision in the prior proceeding must be final and on the merits; and (5) the party against whom preclusion is sought must be identical to or in privity with the party to the prior proceeding. (People v. Garcia (2006) 39 Cal.4th 1070, 1077; People v. Cooper (2007) 149 Cal.App.4th 500, 518 (Cooper).) The burden is on the defendant to establish the factual predicate for the doctrine to apply. (Schiro v. Farley, supra, 510 U.S. at p. 233; Cooper, supra, 149 Cal.App.4th at p. 519.) We do not apply collateral estoppel "with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." (Ashe, supra, 397 U.S. at p. 444; accord, Santamaria, supra, 8 Cal.4th at p. 912.) The California Supreme Court and courts of appeal have expressed doubt that the doctrine of collateral estoppel applies in further proceedings in the same litigation, such as a defendant's retrial after his or her conviction is set aside for reasons other than the legal sufficiency of the evidence. The issue, however, has not been resolved definitively. (See Barragan, supra, 32 Cal.4th at p. 253; Santamaria, supra, 8 Cal.4th at pp. 913-914; People v. Gordon (2009) 177 Cal.App.4th 1550, 1557; Cooper, supra, 149 Cal.App.4th at p. 519.) We need not resolve the issue in this case because, as we will discuss, defendant's claim of collateral estoppel would fail even if the doctrine could apply.
Under the law-of-the-case doctrine, the determination by an appellate court of an issue of law is conclusive in subsequent proceedings in the same case. (People v. Boyer (2006) 38 Cal.4th 412, 441.) The doctrine applies only if the issue was actually presented to and determined by the appellate court. (People v. Gray (2005) 37 Cal.4th 168, 197.) The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances. (People v. Boyer, supra, 38 Cal.4th at p. 441.) But the law-of-the-case doctrine does not limit the evidence that may be offered on the retrial of an issue of fact, and it controls the outcome of a retrial only if the evidence is substantially the same. (Id. at p. 442; Barragan, supra, 32 Cal.4th at p. 246-247.) Accordingly, the law-of-the-case doctrine does not preclude the presentation of new evidence on a suppression issue after a conviction has been reversed and the cause remanded for a new trial. (People v. Boyer, supra, 38 Cal.4th at p. 442; see also Cooper, supra, 149 Cal.App.4th at p. 526-527 [law-of-the-case doctrine did not apply to subsequent retrial of defendant after habeas relief granted and new evidence was presented on retrial].)
Defendant's arguments based the doctrines of collateral estoppel and law-of-the-case both fail for the same reason: the issue determined by the trial court in this case with respect to the admissibility of Cox's in-court identification was not the same issue previously determined by the district court. The issue resolved by the district court was whether defendant was prejudiced by his trial counsel's failure to move to suppress Cox's in-court identification-that is, whether it was reasonably probable, based on the record of the first trial, that defendant would have received a more favorable result had his trial counsel made a motion to suppress. The district court did not hold an evidentiary hearing, and it received no testimony from Cox. Instead, the district court examined Cox's trial testimony to determine whether there was "a reasonable probability that the prosecution would have been unable to establish by clear-and-convincing evidence that the in-court identification by Cox was independent of the illegal lineup." (Italics added.) In other words, the district court examined a trial transcript in an effort to ascertain what probably would have happened at a hypothetical suppression hearing, at which the evidence presented was identical to Cox's trial testimony. As the district court cautioned in its findings, the scope of its determination was limited: "Because there was no motion to suppress filed," the district court stated, "the prosecutor did not have the opportunity to establish the existence of an independent origin of the in-court identification made by... Cox."
In contrast, the trial court in this case was not tasked with determining what probably would have happened at a hypothetical suppression hearing. The issue before the trial court was the factual determination of whether, based on the evidence presented at a suppression hearing, there was clear and convincing evidence that Cox's identification of defendant as the shooter had an origin independent of the illegal live lineup. The trial court held an evidentiary hearing and received testimony from Cox regarding the basis for his identification.
Furthermore, although the transcripts of defendant's first trial are not part of the record on this appeal,*fn7 it appears the evidence at the suppression hearing differed in material respects from the trial testimony relied upon by the district court. For example, unlike the trial court in this case, the district court had no opportunity to observe Cox testify or to evaluate his credibility. Based on its review of the trial transcripts, the district court thought it significant that Cox had little time to observe the shooter because Whitson picked the shooter up close to the scene of the shooting; the shooter was wearing a hat; Cox was intoxicated at the time of the shooting; and Cox's pre-live lineup photo identification of defendant was equivocal based on Cox's statement that the photo looked "mostly like" defendant. Cox testified at the suppression hearing, however, that notwithstanding his intoxication, he was alert when Whitson stopped the Jeep to pick up defendant. Whitson spoke with defendant "for a little while" before defendant got in the car; Cox observed defendant during that time and was able to see his face. Cox then watched defendant run to the house to get something, and Cox saw defendant when he came back to the car. From the front passenger seat of the Jeep, Cox saw defendant pulling himself back in through the rear driver's side window after defendant fired the shots that killed Mitchshalae and wounded the Jones siblings. Cox identified both Whitson and defendant from photo lineups prior to the illegal live lineup. Cox testified that he had identified defendant as the shooter at the first trial, and that his identification was not based on the illegal live lineup-his identification was based on his observations of defendant in court and because defendant was "the person that was in the car." When examined by the trial court, Cox explained that he told police he was not certain about the photographic identification because he was scared-he had heard about what happened to people who testified against someone accused of a drive-by shooting, and he "didn't want to be that individual."
The issues before the district court and the trial court were thus different. Although both issues concerned the origin of Cox's in-court identification, the two determinations were based on different procedures and different evidence. Although the analogy is inexact, one might view the difference between the decisions of the district court on habeas corpus and the trial court after the suppression hearing as similar to the decisions made in a civil case, first on a motion for summary judgment and then after trial. Both decisions, for example, might involve a plaintiff's fraud claim, but the determination on summary judgment that a plaintiff submitted evidence sufficient to raise a triable issue of fact does not preclude the trier of fact from later determining independently after trial that the plaintiff failed to prove his case by ...