COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ISAIAH RASHAD TAYLOR, DEFENDANT AND APPELLANT.
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.
P. v. Taylor CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.)
C. Standard of Review
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 it necessary to determine the reliability of the resulting identification." (People v. Yeoman (2003) 31 Cal.4th 93, 125 (Yeoman).)
The circumstances of Taylor's in-court appearance at the preliminary hearing clearly suggested the identity of the perpetrator of the kidnapping and robbery in advance of his identification by Kukukafi, and the identification procedure was therefore unfair and unduly suggestive. (Ochoa, supra, 19 Cal.4th at pp. 412-413.)
People v. Palmer (1984) 154 Cal.App.3d 79, 88 (Palmer), a decision of this Court, is instructive. In Palmer, two Black men robbed three employees and three customers of a service station at night. The defendant's sole defense was misidentification. Four of the victims viewed photo lineups in which Palmer appeared. Three could not unequivocally identify Palmer. (Id. at p. 83.) All six victims identified Palmer during a preliminary hearing in which Palmer was the only Black man in the courtroom. (Id. at p. 87.)
In reversing Palmer's conviction, this court suggested that any one-on-one confrontation is "inherently suggestive." (Palmer, supra, 154 Cal.App.3d at p. 88.) "The suggestion is conveyed to the witness even more clearly when that person knows not only that the person presented is a suspect but that he/she has been formally arrested, accused and brought to court after being identified by others. If a one-on-one identification where the as yet unaccused suspect is exhibited in the custody of police officers is suggestive, then an accused defendant in the dock presents the witness with an even more suggestive atmosphere, where, under the critical eye of the trier of fact and prosecutor, he or she may well feel compelled to identify the defendant on trial." (Ibid.)
Like Palmer, Taylor was not clearly identified before the preliminary hearing. (Palmer, supra, 154 Cal.App.3d at pp. 88-89.) The first photo lineup Kukukafi viewed did not include a photograph of Taylor. Kukukafi tentatively identified another man as the perpetrator. Kukukafi was not able to identify Taylor in the second photo lineup. During the final photo lineup, which contained Taylor's driver's license photo, Kukukafi stated, "I can't tell. [He] doesn't look like anyone in the photos."
At the preliminary hearing, Taylor and Stillwell were seated at defense counsel's table. Both men were wearing prison clothing. Kukukafi previously had identified Stillwell as the person who had held him hostage from approximately 4:00 a.m. to 8:00 a.m. on February 1. Taylor's appearance at the defense table with a previously identified co-defendant clearly suggested to Kukukafi that the authorities believed he was the perpetrator. (See United States v. Wade (1967) 388 U.S. 218, 234 ["It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police."].) Thus, the circumstances of Taylor's preliminary hearing suggested the "one-on-one confrontation" this court has characterized as "inherently suggestive." (Palmer, supra, 154 Cal.App.3d at p. 88.)
Having determined the pretrial identification procedure at Taylor's preliminary hearing was unduly suggestive, we now consider whether the identification was nevertheless reliable. In doing so, we consider the totality of the circumstances in which the identification was made, employing the nonexclusive factors described by the United States Supreme Court in Biggers and Brathwaite, which were adopted by the California Supreme Court in Alexander and Cunningham.
The record clearly shows that Kukukafi had an extended opportunity to observe the defendant during the commission of the crimes. Kukukafi spent more than two hours in close proximity to Taylor. He had several face-to-face confrontations with Taylor. During one confrontation, Taylor held the front of Kukukafi's shirt with his hand. (See, e.g., United States v. Moody (5th Cir. 2009) 564 F.3d 754, 763 (Moody) [low likelihood of misidentification where victim had excellent opportunity to view the criminal at the crime scene].) Kukukafi was able to describe the events of the night in detail, indicating he was not impaired and that his level of attention was good. (See ibid.; United States v. Rivera-Rivera (1st Cir. 2009) 555 F.3d 277, 284 (Rivera-Rivera) [identification was reliable where the witness's "recollection of detail reflect[ed] attentiveness to his surroundings"].) Kukukafi accurately described the sweatshirt Taylor was wearing at the time of his arrest and the type of gun he used. (See, e.g., People v. Romero (2008) 44 Cal.4th 386, 400 (Romero) [identification reliable where both witnesses said suspect had a ponytail].)
Kukukafi was certain about his identification of Taylor, stating it was "the same face the whole time." Both men were Black. (See, e.g., Arizona v. Youngblood (1988) 488 U.S. 51, 72, fn. 8 [" 'Cross-racial identifications are much less likely to be accurate than same race identifications.' "]; People v. Reyes (2008) 159 Cal.App.4th 214, 221 [two Hispanic witnesses identified Hispanic suspect, "reducing any cross-racial infirmities in their identifications"].) We infer from the lack of controversy at trial that the description of the suspect Kukukafi gave to the police matched Taylor's physical description. (See, e.g., United States v. De Leon-Quinones (1st Cir. 2009) 588 F.3d 748, 755 [witness provided an accurate description of the defendant].) The preliminary hearing occurred three and a half months after the offense, which is not an unreasonable lapse of time. (See Rivera-Rivera, supra, 555 F.3d at pp. 284-285 [finding that six months between crime and in-court identification is "de minimis compared to other cases"].) Thus, the application of the factors adopted by the United States Supreme Court and the California Supreme Court support the reliability of Taylor's identification. (Biggers, supra, 409 U.S. at pp. 199-200; Brathwaite, supra, 432 U.S. at p. 114; Alexander, supra, 49 Cal.4th at pp. 901-902; Cunningham, supra, 25 Cal.4th at p. 989.)
Having independently reviewed the record, we conclude that Taylor's identification was reliable under the totality of the circumstances.*fn4 (Alexander, supra, 49 Cal.4th at pp. 901-902; Yeoman, supra, 31 Cal.4th at p. 125; Brathwaite, supra, 432 U.S. at p. 114; see Stovall v. Denno (1967) 388 U.S. 293, 299 (Stovall) [defendant has opportunity to prove the confrontation resulted in such unfairness if it infringed his right to due process of law].) Thus the trial court did not violate Taylor's due process rights to a fair trial when it allowed the identification evidence to go to the jury.*fn5 (Alexander, supra, 49 Cal.4th at p. 903; Cunningham, supra, 25 Cal.4th at p. 990; Stovall, supra, 388 U.S. at p. 299; Brathwaite, supra, 432 U.S. at p. 114 ["reliability is the linchpin in determining the admissibility of identification testimony"].)
Gang Enhancement Under Section 186.22(b)(1)
Although Taylor's argument is not entirely clear, he appears to contend there is not substantial evidence to support the gang sentencing enhancement of section 186.22(b)(1) under the federal case law interpretation of the "specific intent" element of that statute.*fn6 He attacks current California case law and attempts to persuade us that the Ninth Circuit's interpretation of section 186.22(b)(1) in Garcia v. Carey (2005) 395 F.3d 1099, 1100-1101 (Garcia) and Briceno v. Scribner (2009) 555 F.3d 1069 (Briceno) is correct.
As we will explain, we need not decide Taylor's statutory argument because there is ample evidence to sustain the gang enhancement finding under either the state or the Ninth Circuit's case law interpreting section 186.22(b)(1). We first set forth the relevant facts and then briefly explain the different interpretations of the statute by the California and federal courts.
A. Facts Relating to the Gang Enhancement
Taylor was a self-admitted and documented member of the West Coast Crips. The West Coast Crips was a criminal street gang that was involved in pedestrian, commercial and home-invasion robberies. When Taylor first made contact with the victim, Taylor was in a Nissan with a "car . . . full of people." Taylor then confronted Kukukafi face-to-face on the street. He pointed a gun at Kukukafi's head and demanded money. Kukukafi emptied his pockets to show Taylor that he did not have any money, only an ATM card.
Taylor then called to the men in the car using a language that sounded to Kukukafi like "easy, cheesy, geezy."*fn7 One of the men in the Nissan left the car, stood behind Kukukafi and held a gun to the back of his head. Taylor pointed a gun at Kukukafi's chest. Taylor and the second man walked Kukukafi back to his car, directed him at gunpoint to sit in the passenger seat and commandeered the car. The second man sat in the back and held a gun to Kukukafi's head. The men in the Nissan followed Taylor as he drove Kukukafi's car to the first ATM. Taylor and the second man involved in the kidnapping kept their guns pointed at Kukukafi during his transaction at the ATM. When Kukukafi was not able to make a withdrawal, Taylor consulted with the second man and the men in the Nissan, again using the same rhyming slang language, before driving to the second ATM.
When that transaction was not successful, the second man directed Taylor to give his beanie to Kukukafi and instructed Kukukafi to wear it like a hood over his head and face. Kukukafi asked Taylor, "How can you guys do something like [this] to your own people?"
Taylor replied, "I don't give a fuck. Black, White, Mexican. I'm a gangster. I do [this] for a living. I don't play with men. If I don't get what I need, you're done."
While the second man held Kukukafi at gunpoint, Taylor stripped the radio from Kukukafi's car, saying "Sorry I have to do [this] 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.
Later Taylor recruited Stillwell to assist him in the robbery. Stillwell was a documented member of the West Coast Crips gang. Taylor told Kukukafi his "soldier" was going to watch him. Taylor and Stillwell spoke in "their language." Taylor gave his gun to Stillwell and instructed him to "blow [Kukukafi's] head off" if Kukukafi tried "something wrong." When Taylor did not return, Stillwell attempted to complete the robbery in Taylor's absence.
At trial, the People's gang expert, Detective Johnny Keene, testified that he personally had investigated cases of pedestrian robberies involving West Coast Crips members. The proceeds of the robberies allowed the gang to purchase drugs, which they then sold and used the money to buy weapons, which then enabled them to commit more robberies. Keene also explained that a series of crimes committed by the gang intimidated victims and witnesses. The crimes not only increased the status of the gang member who committed the offenses within the gang, but also enhanced the reputation of the gang within the community and the gang world. The pattern of criminal activity intimidated victims and witnesses and allowed the gang to benefit from its notoriety. Keene said it was common practice for various gang members to use the same gun.
Section 186.22 of the California Street Terrorism Enforcement and Prevention Act (STEP Act) (§ 186.20 et seq.) includes a sentencing enhancement for certain gang-related felony offenses. (§ 186.22(b)(1).)*fn8 For the enhancement to apply, section 186.22(b)(1) requires a conviction of a felony offense committed (1) for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in any criminal conduct by criminal street gang members. (Ibid.)
There is a sharp divergence of opinion between the California courts and the Ninth Circuit regarding the proper interpretation of the "specific intent" element of section 186.22(b)(1). (See Emery v. Clark (2010) 604 F.3d 1102, 1119.) California courts have held that the "specific intent" element of section 186.22(b)(1) is satisfied when the defendant has committed any felony offense, including the instant offense, in concert with another gang member or members, knowing they were gang members. (See, e.g., Villalobos, supra, 145 Cal.App.4th at p. 322 [non-gang member defendant committed offenses with her boyfriend, knowing he was a gang member]; People v. Romero (2006) 140 Cal.App.4th 15, 19-20 (Romero) [defendant acted with specific intent when he drove a fellow gang member into a rival gang's territory to carry out a drive-by shooting]; Morales, supra, 112 Cal.App.4th at pp. 1198-1199 [defendant intended to commit robberies in association with two others, knowing they were gang members].) Further, the California courts have held that there is no statutory requirement calling for criminal conduct by gang members to be distinct from the charged offense. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354 (Vazquez); People v. Hill (2006) 142 Cal.App.4th 770, 773-774 (Hill); Romero, at p. 19; Morales, at pp. 1198-1199.)
Conversely, the Ninth Circuit has interpreted the phrase "with the specific intent to promote . . . any criminal conduct" (§ 186.22(b)(1)) to require the defendant to act with specific intent to facilitate criminal conduct other than the instant offense. (Garcia, supra, 395 F.3d at pp. 1100-1101; Briceno, supra, 555 F.3d at pp. 1078-1080.) Further, the Ninth Circuit has held that an "expert's generic testimony" is insufficient, by itself, to show that a defendant has the specific intent to facilitate other criminal conduct by gang members.*fn9 (Briceno, supra, 555 F.3d at p. 1079; see also Garcia, supra, 395 F.3d at p. 1103 [there was no evidence other than the gang expert's generic testimony to support an inference the defendant acted with the specific intent to facilitate other criminal conduct by gang members].)
C. Standard of Review
To assess the evidence's sufficiency, we review the entire record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict -- evidence that is reasonable, credible and of such solid value that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury reasonably could have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480 (Boyer).)
Taylor ignores the substantial evidence contained in the record supporting the jury's true finding on the gang enhancement. Instead, relying on his statement that he needed money to go shopping to buy gold, clothes and shoes, Taylor argues the evidence establishes only that he intended to rob the victim for personal gain and does not support the jury's finding that he acted with "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1).) He also argues that Detective Keene, the prosecution's gang expert, provided only generic testimony about the impact of a gang member's crime on the gang's notoriety and that this testimony was insufficient to establish the "specific intent" element of section 186.22(b)(1). Taylor contends the facts of this case parallel those in Briceno,*fn10 in which the Ninth Circuit concluded there was insufficient evidence to support the finding the defendant committed the felony kidnapping offenses with the specific intent to facilitate other criminal conduct by gang members. (Briceno, supra, 555 F.3d at pp. 1078-1079.)
We conclude there is substantial evidence to show Taylor acted with the specific intent to facilitate criminal conduct by other gang members under either the California courts' or the Ninth Circuit's interpretation of section 186.22(b)(1). Taylor, a self-admitted and documented member of the West Coast Crips, recruited Stillwell, who was also a documented West Coast Crips gang member, to guard Kukukafi until Taylor could complete the robbery in the morning. Stillwell then became complicit in the robbery, carjacking and kidnapping offenses. It is therefore " 'fairly inferable that [Taylor] intended to assist criminal conduct by his fellow gang members' " when he enlisted Stillwell's assistance in the offenses. (Romero, supra, 140 Cal.App.4th at p. 20, quoting Morales, supra, 112 Cal.App.4th at p. 1198.) No other evidence is required to sustain the enhancement under the California courts' interpretation of section 186.22(b)(1). (Villalobos, supra, 145 Cal.App.4th at p. 322.)
After he recruited Stillwell, Taylor gave his gun to Stillwell and instructed him to shoot Kukukafi if he tried "something wrong." While Taylor's actions facilitated the instant offenses, there is no doubt his act of giving a gun to another gang member, with instructions to shoot the victim if necessary, constitutes substantial evidence that Taylor had the specific intent to promote, further or assist in other criminal conduct by a gang member, as interpreted by the Ninth Circuit in Garcia and Briceno.*fn11
We are also not persuaded by Taylor's argument that Detective Keene's testimony provided only generic testimony of Taylor's intent to further criminal conduct by gang members. This case bears no similarity to other cases which have held that expert gang testimony, standing alone, is insufficient to sustain a gang enhancement. Here, as we have discussed, Taylor's own acts and statements provide substantial evidence to sustain the gang enhancement, with or without Detective Keene's testimony. Further, Detective Keene's testimony was not generic. He testified that the West Coast Crips gang was known to commit pedestrian and other robberies, and he personally had investigated those robberies. Based on his knowledge of the West Coast Crips, Keene testified that the proceeds from the robberies allowed West Coast Crips gang members to engage in further criminal acts, such as purchasing drugs for sale or obtaining weapons for use in other crimes. (See Killebrew, supra, 103 Cal.App.4th at p. 657 [permissible expert testimony includes testimony concerning "the primary activities of a specific gang"].) Thus, contrary to Taylor's argument, Keene's testimony provided credible evidence from which the jury could reasonably infer that Taylor's robbery of Kukukafi, if successful, would promote other criminal conduct by gang members, such as purchasing drugs for sale or obtaining weapons.
Based on the facts in evidence, the jury reasonably could infer that even if Taylor was motivated by the prospect of some personal financial benefit, he nonetheless acted with the specific intent to facilitate criminal conduct by gang members within the meaning of section 186.22(b)(1). The record shows that Taylor intended to commit one or more crimes, intentionally asked at least one gang member, Stillwell, to assist him, knowing Stillwell was a member of his gang. (Ibid.; see Vazquez, supra, 178 Cal.App.4th at p. 353; Hill, supra, 142 Cal.App.4th at pp. 773-774; Morales, supra, 112 Cal.App.4th at pp. 1198-1199.) He also gave a gun to Stillwell with instructions to shoot Kukukafi if necessary. (Garcia, supra, 395 F.3d at pp. 1100-1101; Briceno, supra, 555 F.3d at pp. 1078-1080.) We conclude there is substantial evidence from which the jury could conclude that Taylor committed the felony kidnapping offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by criminal street gang members. (§ 186.22(b)(1).)
INEFFECTIVE ASSISTANCE OF COUNSEL
Taylor contends he was denied effective assistance of counsel by the two attorneys who represented him at different stages of the proceedings. Attorney Cutter directed the initial investigation of the case and represented Taylor at the preliminary hearing. Attorney Besse was Taylor's trial attorney.
Taylor contends Attorney Cutter's performance was deficient because she did not take steps to avoid suggestive identification procedures before trial, either by requesting a live lineup or by taking other measures to conceal him from witnesses at the preliminary hearing. Taylor asserts Attorney Besse's performance was deficient because Besse did not interview potential alibi witnesses, stipulate to gang membership or move to bifurcate the gang allegations, or object to testimony about Taylor's prior status on juvenile probation. Taylor contends but for counsels' unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 687.)
A. Procedural Background
After he was convicted, Taylor filed a motion for a new trial, alleging his attorneys were ineffective because they did not advise him of the possibility of a life sentence*fn12 and did not investigate an alibi defense when the defense investigation to date suggested Taylor had an alibi. Attorneys Cutter and Besse testified at the hearing on the motion for a new trial. The court found that counsel's decision not to present an alibi defense was tactical and denied Taylor's motion for a new trial.
To prevail on an ineffective assistance of counsel claim, the defendant must first show that counsel's performance was deficient and counsel's failure to provide competent representation was prejudicial to the defendant. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at p. 216.) Further, a defendant must show the omissions of counsel involved a critical issue, and cannot be explained on the basis of knowledgeable choice of trial tactics. If the record sheds no light on why counsel acted or failed to act in the manner challenged, the contention must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply can be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426 (Pope).)
A reviewing court will find prejudice when a defendant demonstrates a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 687; People v. Gurule (2002) 28 Cal.4th 557, 611; Ochoa, supra, 19 Cal.4th at p. 414.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ledesma, supra, 43 Cal.3d at pp. 217-218; see also Strickland, at pp. 687-688.)
An appellant bears the burden of proving ineffective assistance of trial counsel. (Pope, supra, 23 Cal.3d at p. 425.)
We first address Taylor's claim that Attorney Cutter's performance fell below a reasonable standard because she did not request a live lineup or otherwise avoid a suggestive eyewitness identification at the preliminary hearing.
1. Attorney Cutter did not render ineffective assistance.
Taylor asserts he received ineffective assistance of counsel because his attorney did not request a live lineup before the preliminary hearing, or otherwise avoid a suggestive identification at the preliminary hearing. Taylor contends that without the suggestive identification at the preliminary hearing, the jury would have discounted the accuracy of Taylor's identification at trial, which took place almost 18 months after the crime.
Upon timely request, a criminal defendant may be afforded a pretrial lineup if eyewitness identification is a material issue at trial and there is a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. (People v. Farnam (2002) 28 Cal.4th 107, 183, citing Evans v. Superior Court (1974) 11 Cal.3d 617, 625; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) If a defendant anticipates that an in-court identification may be suggestive, the remedy to avert any prejudice that may result from the suggestive courtroom procedure is to demand that a lineup be conducted before the in-court identification. (Evans, at p. 625; People v. Harmon (1989) 215 Cal.App.3d 552, 568; People v. Green (1979) 95 Cal.App.3d 991, 1004.)
Kukukafi was unable to identify Taylor in two photo lineups. Cutter stated that as her investigation proceeded, she focused on identity issues as the primary defense to the criminal charges. The record supports the conclusion that counsel's decision not to request a live lineup, either as a precaution or a remedy, was a tactical decision and did not constitute ineffective assistance of counsel. Had Kukukafi identified Taylor in a live lineup prior to the preliminary hearing, the resulting identification would have undermined the defense case. Thus the defendant does not show counsel's performance was deficient under an objective standard of professional reasonableness. (Ledesma, supra, 43 Cal.3d at p. 216; Strickland, supra, 466 U.S. at pp. 687-688.)
Further, assuming counsel made an unprofessional error, Taylor does not show prejudice. (Strickland, supra, 466 U.S. at p. 687.) In view of the reliability of Taylor's identification (discussed ante, pp. 10-14), it is reasonably probable Kukukafi would have identified Taylor at a live lineup. As we have explained, Kukukafi had the opportunity to observe Taylor for more than two hours. They sat next to each other in the car. They talked. Kukukafi remembered features of Taylor's face and was certain about his identification. (See, e.g., Moody, supra, 564 F.3d at p. 763; Rivera-Rivera, supra, 555 F.3d at p. 284; Romero, supra, 44 Cal.4th at p. 400.) This is a far different situation than a witness who had only a few seconds to observe an unknown perpetrator or whose view of the perpetrator was partially obscured. (United States v. Russell (6th Cir. 1976) 532 F.2d 1063, 1066 ["There is great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation . . . ."].)
In view of the circumstances presented here, the potential for misidentification was minimal. Thus Taylor does not show on appeal there is a reasonable probability the result of the proceeding would have been different had he participated in a live lineup prior to the preliminary hearing or otherwise avoided a suggestive identification at the preliminary hearing. (Ledesma, supra, 43 Cal.3d at p. 216; Strickland, supra, 466 U.S. at p. 687.)
Having addressed Taylor's claim of ineffective assistance of counsel as to Attorney Cutter, we now discuss Taylor's claims that Attorney Besse rendered ineffective assistance when he did not interview potential alibi witnesses, object to the admission of evidence that Taylor had been on probation with gang conditions, and stipulate that Taylor was a member of the West Coast Crips or move to bifurcate the gang allegations.
2. Counsel's decision not to further investigate potential alibi witnesses was reasonable under the circumstances.
Taylor argues Besse failed to personally interview Taylor's mother, two brothers and Stillwell, who were potential alibi witnesses. Taylor asserts the testimony of the witnesses would have established that he was at home asleep during the kidnapping, that Stillwell had borrowed the beanie and the Ecko sweatshirt on the evening of the kidnapping, and that Stillwell owned the gun used in the kidnapping and had allowed Taylor to play with it on another occasion. Taylor contends Besse breached his duty to investigate the facts of his case. (Ledesma, supra, 43 Cal.3d at p. 222.) He maintains Besse's failure to interview his mother, brothers and Stillwell deprived him of an alibi defense and constitutes ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 687; see Lord v. Wood (9th Cir. 1999) 184 F.3d 1083, 1095 [attorney has obligation to determine whether a potential alibi witness can withstand cross-examination by "looking him in the eye and hearing him tell his story"].)
Before turning to a discussion of the merits, we set forth the facts relevant to Taylor's claim that Besse provided ineffective assistance of counsel by failing to interview potential alibi witnesses.
Stillwell claimed that Taylor was not involved in the kidnapping. However, at the preliminary hearing, a police officer testified that Stillwell had led police to Taylor by referring to him by a name that resembled Taylor's gang moniker, "Holi Fu 3." Taylor's first attorney, Cutter, considered calling Stillwell as a witness; however, Stillwell's attorney refused to allow his client to be interviewed. At Cutter's direction, to further investigate Stillwell's claim that Taylor was not involved in Kukukafi's kidnapping, a defense investigator interviewed Taylor's mother and two brothers, Deron and Anthony.
While preparing for trial, Cutter reviewed the statement of Taylor's mother and brothers. She was concerned about factual differences between Stillwell's story and the other evidence. Cutter had not decided whether to call Stillwell to testify when the case was reassigned to Attorney Besse.
When he received the case, Besse reviewed the case file. Besse testified that he decided, without interviewing Taylor's mother, brothers or Stillwell, not to present an alibi defense. Besse did not believe the potential alibi witnesses would hold up well on cross-examination. In addition he would have been required to turn over their statements to the prosecution. Besse did not interview Stillwell because, no matter what Stillwell told him, "[Stillwell] already had said that my client was the one that committed the crime. And that was going to come from a police officer." Besse decided instead to focus on challenging the eyewitness identification.
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any effectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (Strickland, supra, 466 U.S. at pp. 690-691; In re Thomas (2006) 37 Cal.4th 1249, 1258; In re Cudjo (1999) 20 Cal.4th 673, 692.)
Besse's decision not to have Stillwell testify for the defense can be explained on the basis of knowledgeable choice of trial tactics and does not constitute ineffective assistance of counsel. (Pope, supra, 23 Cal.3d at p. 426.) The record shows that Besse reviewed Stillwell's letter and the statements he had made to the police. He believed Stillwell's accounts were inconsistent and potentially harmful to the defense.
The defense conducted a reasonable inquiry when its investigator interviewed Taylor's mother and brothers. There is no fixed rule requiring counsel to independently verify investigatory reports. (Cf. In re Cudjo, supra, 20 Cal.4th at p. 694.) Further, our independent review of the record shows there are inconsistencies in the statements of Taylor's mother and brothers which would have made an alibi defense problematic.*fn13 Under applicable criminal discovery rules, Besse would have been required to turn over the witness's statements to the prosecution, which would have allowed the prosecution to exploit the weaknesses and inconsistencies in the statements that Taylor's family members made to the defense investigator. (See § 1054.3 [defense shall disclose names and addresses of persons, other than the defendant, it intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons]; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 374 [defense must disclose relevant real evidence it intends to offer at trial].) Besse made a reasonable tactical decision when he determined that the family's testimony had the potential to undermine what he determined was Taylor's strongest defense -- challenging the eyewitness identification -- by presenting a weak alibi defense.
We conclude that Besse met his duty to make a reasonable investigation into the facts of the case when he reviewed Stillwell's statements to the police and the testimony at the preliminary hearing, and reviewed the defense's investigative report of his interviews with Taylor's family members. (Strickland, supra, 466 U.S. at pp. 690-691; In re Thomas, supra, 37 Cal.4th at p. 1258.) Besse's strategic choice not to pursue an alibi defense was a reasonable decision that made further investigation unnecessary, and did not constitute ineffective assistance of counsel. (Strickland, at pp. 690-691; In re Cudjo, supra, 20 Cal.4th at p. 700.)
3. Taylor does not show on appeal there is a reasonable probability the result of the proceedings would have been different had he sought to bifurcate the gang enhancement allegations or stipulate to gang membership.
Taylor contends Besse's performance fell below professional standards when he did not move to bifurcate the gang enhancement allegations and, failing that, did not mitigate the damage by stipulating to gang membership. Taylor asserts that but for the highly prejudicial and inflammatory testimony about his membership in and the criminal activities of the West Coast Crips gang, the jury would not have convicted him on the substantive charges of kidnapping for robbery and kidnapping during a carjacking. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.)
Before turning to our discussion of Taylor's claim, we set forth the applicable facts relating to Taylor's membership in the West Coast Crips gang and its criminal activities.
El Cajon police officers testified that Taylor was a self-identified and documented member of the West Coast Crips, a criminal street gang. El Cajon Police Detective James Juns testified that he saw Taylor in the company of West Coast Crips gang members on several occasions. Taylor told the detective several times he was a member of the West Coast Crips. In October 2005 Taylor shouted at him, "You can't touch me now, I'm on probation," and flashed a gang sign used by the West Coast Crips. At that time Taylor was on probation with gang conditions.
Detective Keene said the West Coast Crips gang was involved in commercial robberies and home invasions. In addition to robbery, kidnapping, assault with a deadly weapon and making terrorist threats, West Coast Crips members committed a drive-by killing of a non-gang member, and murdered a man during a drug transaction by shooting him five times after he was felled by their first shot.
Besse's performance did not fall below professional standards when he did not stipulate to gang membership. "The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness." (People v. Edelbacher (1989) 47 Cal.3d 983, 1007; People v. Thornton (2000) 85 Cal.App.4th 44, 49 [this general rule is subject to court's exercise of discretion under Evid. Code, § 352].) There is no suggestion in the record that the prosecution would have been willing to accept such a stipulation. (People v. McClellan (1969) 71 Cal.2d 793, 802 [noting policy against forcing prosecutor "to accept stipulations that soften the impact of the evidence in its entirety"].)
On the issue of prejudice, without deciding error with respect to the failure to request a bifurcation of the gang enhancement, we determine Taylor does not establish that he was prejudiced by the testimony about his gang membership and the criminal activities of the West Coast Crips. "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (Strickland, supra, 466 U.S. at p. 697; People v. Sapp (2003) 31 Cal.4th 240, 263.) In determining whether counsel's conduct affected the reliability of the trial as to undermine confidence in the result (Strickland, supra, at p. 686), we consider whether "but for" counsel's allegedly deficient performance " 'there is a reasonable probability the result of the proceeding would have been different.' " (Sapp, supra, at p. 263, quoting People v. Cash (2003) 28 Cal.4th 703, 734.)
In view of Kukukafi's description of Taylor as the man who held him at gunpoint for several hours; threatened to kill him if he did not obtain money; enlisted the assistance of other gang members during the carjacking, kidnapping and robbery; told the victim he was a gangster; and gave a gun to his "soldier" and instructed him to shoot Kukukafi if necessary, Taylor does not show there is a reasonable probability the result of his conviction on the instant offenses would have been different had defense counsel sought to bifurcate the gang enhancement allegation or stipulated to gang membership. (Ledesma, supra, 43 Cal.3d at p. 216; Strickland, supra, 466 U.S. at p. 687.)
4. Attorney Besse did not render ineffective assistance by failing to object to testimony Taylor had been on probation.
Taylor also contends Besse's performance fell below a reasonable standard when Besse did not object to Detective Juns's testimony that in October 2005 Taylor had shouted at him, "You can't touch me now, I'm on probation," and flashed a gang sign used by the West Coast Crips. The detective also testified that Taylor had been on probation with gang conditions. Taylor asserts counsel's failure to object to Detective Juns's testimony was prejudicial because the jury was informed he was arrested on the morning of the kidnapping for an unrelated crime and could infer he previously had committed a gang-related crime. Taylor argues evidence of other crimes unrelated to the charged offenses would allow the jury to conclude Taylor "had a criminal disposition and thus probably committed the presently charged offense." (People v. Calderon (1994) 9 Cal.4th 69, 75 [evidence involving other crimes committed by defendant is admitted with caution because it might prejudice the jury].)
"[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502 (Hillhouse).)
Besse's decision not to object to the detective's brief testimony about Taylor's probation status was a reasonable tactical decision (Hillhouse, supra, 27 Cal.4th at p. 502) and did not constitute ineffective assistance of counsel. (Strickland, supra, 466 U.S. at pp. 690-691; In re Cudjo, supra, 20 Cal.4th at p. 700.) Instead of drawing attention to the probation testimony, Besse elicited testimony that minimized the evidence in a manner favorable to the defense. On cross-examination, Detective Keene stated that Taylor had never been arrested for anything other than making a threat when he was a juvenile in 2004 and he was not connected to any of the crimes committed by the West Coast Crips to which Keene had testified. In view of the minimal propensity evidence before the jury, we are not persuaded by Taylor's argument that Attorney Besse's performance was ineffective.
Further, in view of the ample evidence establishing Taylor's guilt of the instant offenses (set forth ante, pp. 3-5, 35), even were Taylor able to establish that counsel's performance was ineffective, he cannot show on appeal that he was prejudiced by the admission of the fact that Taylor had been on probation with gang conditions because of an incident, the details of which were not in evidence, that occurred while he was in high school. (Ledesma, supra, 43 Cal.3d at pp. 217-218; Strickland, supra, 466 U.S. at pp. 691-692.) As we have previously explained, the jury could reasonably determine Kukukafi was a credible witness and his testimony was corroborated by the evidence of Taylor's DNA on the gun and beanie and other circumstantial evidence. Thus Taylor cannot show there is a reasonable probability the result of the proceeding would have been different had counsel objected to the probation testimony. (Strickland, at p. 694.)
TAYLOR RECEIVED A FAIR TRIAL
Taylor contends the cumulative prejudicial effect of the various errors he has raised on appeal deprived him of a fair trial. We have rejected Taylor's claims of error. (See Cal. Const., art. 6, § 13; People v. Crayton (2002) 28 Cal.4th 346, 364; People v. Jenkins (2000) 22 Cal.4th 900, 1056.) Taylor received a fair trial. (People v. Mincey (1992) 2 Cal.4th 408, 454.)
The judgment is affirmed.
WE CONCUR: MCCONNELL, P. J. HALLER, J.