Super. Ct. No. SCD204480 APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge.
The opinion of the court was delivered by: Irion, J.
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A jury convicted Isaiah Rashad Taylor of kidnapping for robbery and kidnapping during a carjacking. (Pen. Code,*fn1 §§ 209, subd. (b)(1), 209.5, subd. (a).) The jury also found that Taylor personally used a handgun in the commission of the felony kidnapping offenses (§ 12022.5, subd. (a)) and committed the offenses in connection with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1) (hereafter section 186.22(b)(1)). Taylor was sentenced to an indeterminate term of life in prison with the possibility of parole plus 10 years.
Taylor contends his conviction must be reversed because the admission of suggestive eyewitness identification evidence violated his rights to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and corresponding provisions of the California constitution. He asserts the true finding on the gang enhancement under section 186.22(b)(1) is not supported by substantial evidence. Taylor also contends he was denied effective assistance of counsel because counsel did not present an alibi defense, move to exclude prejudicial gang testimony and/or bifurcate the gang allegations, object to testimony about Taylor's prior status on juvenile probation and/or avoid unduly suggestive eyewitness identification at the preliminary hearing.
We conclude that Taylor's identification at the preliminary hearing was made under suggestive circumstances, but the identification was reliable under the totality of the circumstances and did not violate Taylor's due process rights to a fair trial. (People v. Alexander (2010) 49 Cal.4th 846, 901-902 (Alexander); People v. Cunningham (2001) 25 Cal.4th 926, 989-990 (Cunningham).) We also conclude there is sufficient evidence to show that Taylor committed the charged offenses for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to facilitate criminal conduct by criminal street gang members, within the meaning of section 186.22(b)(1). (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 (Villalobos); People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199 (Morales).) With respect to the claim he did not receive effective assistance of counsel, we determine that Taylor does not demonstrate on appeal that his counsel's performance fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).) Accordingly, we affirm the judgment.
On February 1, 2007, at approximately 1:20 a.m., a group of men in a Nissan Maxima asked Samuel Kukukafi (Kukukafi or victim) for directions to the freeway as he was walking home. Minutes later, a man confronted Kukukafi, pointed a gun at his forehead and demanded his money.
Kukukafi later identified the gunman as Isaiah Rashad Taylor.
Kukukafi emptied his pockets to show Taylor he did not have any money, only a pack of cigarettes and an ATM card. When Taylor saw the ATM card, he called to the men in the Maxima using a language Kukukafi did not understand. A second man, who was never identified, left the Maxima, stood behind Kukukafi and held a gun to the back of his head. Taylor and the second man walked Kukukafi back to Kukukafi's car at gunpoint and directed him to sit in the passenger seat. The second man sat in the back seat. Followed by the men in the Maxima, Taylor drove Kukukafi's car to a walk-up ATM and demanded Kukukafi obtain cash. Taylor and the second man kept their guns pointed at Kukukafi.
Kukukafi was unable to withdraw money from his account. He explained he had deposited his paycheck earlier that evening but it had not yet cleared. Kukukafi showed the deposit slip to Taylor. Taylor spoke to the men in the Maxima, again using a language Kukukafi did not understand. Taylor said, "Let's go and try another ATM." He drove Kukukafi to a drive-up ATM at another location. Kukukafi could not retrieve any money from his account. The ATM receipt showed the second attempted transaction occurred at 1:43 a.m.
The second man directed Taylor to give his knit beanie to Kukukafi, and instructed Kukukafi to pull the beanie over his head and eyes while they were driving. Taylor drove to a parking complex near an apartment building. Kukukafi was allowed to remove the beanie. While the second man continued to hold Kukukafi at gunpoint, Taylor removed the radio from Kukukafi's car, explaining "Sorry, I have to do that since we didn't get anything from you. Now we need this money. We need anything right now, so, sorry, we're going to take your radio." Taylor gave the car radio to the second man, who left with the men in the Maxima and did not return.
Shortly before 3:40 a.m., Taylor drove Kukukafi, who had the beanie over his head and face, to a third ATM. He was allowed to remove the beanie at the ATM. Again, Kukukafi could not make a withdrawal. Taylor became angry. He pointed the gun at Kukukafi's head with one hand and grabbed Kukukafi's shirt with the other. Taylor said, "I need this money today. . . . We have to go the mall tomorrow. I want to buy gold and clothes and shoes . . . . [¶] . . . Man, if you piss me off, man. This is [what] I do for a living. Don't waste my time. I'm going to kill you. I don't play with money."
To appease Taylor, Kukukafi said he would take him to the mall in the morning and would buy him anything he wanted.
Taylor drove to an apartment complex where he spoke with two men. One of the men sat in the back seat of the car. Taylor instructed Kukukafi to pull the knit beanie over his face again and drove to another apartment complex. Taylor spoke in slang language to the man sitting in the back seat of the victim's car. He told Kukukafi, "My soldier's going to watch you." Taylor gave his gun to his "soldier" and instructed him to "blow [Kukukafi's] head off" if he tried "something wrong."
Kukukafi later identified the "soldier" as Larry Stillwell.
When Taylor did not return in the morning, Stillwell became anxious. Stillwell said if Kukukafi could get the money out of the bank, he would release him. Stillwell allowed Kukukafi to drive. When Kukukafi saw two motorcycle policemen parked on the side of the street, he maneuvered the car in front of them and jumped out. Stillwell ran from the scene and discarded the gun, which was located by police. Police officers apprehended Stillwell later that day.
Stillwell had a tattoo indicating he was a member of the West Coast Crips, a criminal street gang known to have committed robberies, rapes, murders and kidnappings for robbery. Stillwell stated he did not know the name of the man who had picked him up in the early morning hours of February 1, 2007. He only knew his gang name, "hubootie." A police officer recalled that Taylor's gang moniker was "Holi Fu 3," and arrested him on felony charges of kidnapping for robbery and kidnapping during a carjacking.
Taylor argues his identification at trial was tainted by the suggestive circumstances of his identification at the preliminary hearing. He contends the suggestive identification was not reliable and deprived him of his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution.*fn2 We address Taylor's claim after setting forth the applicable facts and relevant law.
In his initial interview with police after the incident, Kukukafi described Taylor as a 19- or 20-year-old Black man, 5 feet 11 inches tall, weighing approximately 200 pounds. Kukukafi said Taylor's hair was in cornrows and he was wearing a dark sweatshirt with a white stripe across the top. Detectives asked Kukukafi to view three photographic lineups. The first lineup consisted of a photograph of a suspect and two filler photographs, none of which were of Taylor. Kukukafi stated a man in one of the filler photographs looked like Taylor but he was not certain it was him. The second lineup consisted of six Polaroid photographs, including a poor quality photograph of Taylor. Kukukafi did not identify Taylor. The third lineup also consisted of six photographs, one of which was Taylor's driver's license photo. Kukukafi did not identify Taylor, saying, "I can't tell. [The perpetrator] doesn't look like anyone in the photos."
At the preliminary hearing on May 16, 2007, Taylor was seated at the defense table next to Stillwell,*fn3 whom Kukukafi had identified on February 1 as the person that had been with him when he notified police officers of the kidnapping. Taylor and Stillwell were both wearing prison clothing. Kukukafi identified Taylor as the man who had asked him for directions and then kidnapped him at gunpoint.
The defense moved to exclude evidence of Taylor's identification at the preliminary hearing and to preclude Kukukafi from making an in-court identification at trial. The trial court stated it did not believe the circumstances at the preliminary hearing were unnecessarily suggestive and denied the motions to exclude Taylor's identification.
Due process requires that a defendant be identified by a method that is fair and reliable under the circumstances. (Simmons v. United States (1968) 390 U.S. 377, 384 [due process offended by use of impermissibly suggestive procedures].) An identification of a defendant from a procedure that is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" is constitutionally defective and must be excluded from evidence. (Ibid.; Neil v. Biggers (1972) 409 U.S. 188, 198 (Biggers) [the primary evil to be avoided is a substantial likelihood of misidentification]; accord, People v. Blair (1979) 25 Cal.3d 640, 659.)
To determine whether the admission of identification evidence violates a defendant's right to due process of law, we first consider whether the identification procedure was unduly suggestive and unnecessary, and, if so, whether the identification itself was nevertheless reliable under the totality of the circumstances. (Alexander, supra, 49 Cal.4th at pp. 901-902.) " 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' " (People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa), quoting People v. Slutts (1968) 259 Cal.App.2d 886, 891.)
In determining whether a suggestive identification procedure nevertheless results in a reliable identification, we review the totality of the circumstances under which the identification was made, considering such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (Biggers, supra, 409 U.S. at pp. 199-200; Manson v. Brathwaite (1977) 432 U.S. 98, 114 (Brathwaite); Alexander, supra, 49 Cal.4th at pp. 901-902; Cunningham, supra, 25 Cal.4th at p. 989.)
The constitutionality of an identification procedure presents a mixed question of law and fact. "We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive." (People v. Gonzalez (2006) 38 Cal.4th 932, 943.) "Only if the challenged identification procedure is unnecessarily suggestive is ...