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The People v. Tiana Nicole Borel

January 11, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIANA NICOLE BOREL, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F08845)

The opinion of the court was delivered by: Mauro , J.

P. v. Borel

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Tiana Nicole Borel of second degree robbery, false imprisonment, battery and second degree commercial burglary. The trial court sentenced her to seven years four months in prison.

Defendant now contends (1) her trial counsel rendered ineffective assistance; (2) the trial court erred in instructing the jury with CALCRIM No. 359 [corpus delicti -- independent evidence of a charged crime] because it relieved the prosecution of the burden of proving the identity of the perpetrator; and (3) cumulative error resulted in prejudice.

We conclude (1) defendant has not established ineffective assistance of counsel; (2) the trial court did not err in giving CALCRIM No. 359, and the jury could not have understood the instructions as a whole to relieve the prosecution of its burden of proof; and (3) defendant's claim of cumulative prejudice lacks merit.

We will affirm the judgment.

BACKGROUND

Virginia Herrera and Marcus Alvarado were working one night at a Blockbuster Video store on Del Paso Road. The inside of the store was brightly-lit. Two robbers, one male and one female, ran into the store wearing ski masks. The robbers directed Herrera and Alvarado to get on the ground.

The male robber held what looked like a nine millimeter semi-automatic pistol in his hand. He ordered Herrera to open the cash registers. Herrera and Alvarado complied with the robber's order and sat down on the ground. The male robber took money from the cash registers.

While the male robber remained with Herrera and Alvarado, the female robber ran toward the back of the store where Stanley Hung and his wife Ting Hung were looking at movies to rent. According to Mrs. Hung, the female robber yelled something like "armed robbery. I have gun. Get to the floor." It appeared to the Hungs that the female robber held something like a gun or a weapon in her hand inside her jacket pocket. Because she was wearing a mask, only the eyes, eyebrows and top part of the nose of the female robber were visible.

The female robber forced Mrs. Hung to the floor, pressing Mrs. Hung's head down while yelling something like "This is armed robbery. I have gun . . . get down to the floor." The female robber then moved toward Mr. Hung, who slipped and hurt his leg. The female robber held Mr. Hung down and took his wallet containing $600.

Fearing that her husband had been killed, Mrs. Hung ran to check on him. But the female robber ran toward Mrs. Hung and yelled at Mrs. Hung to get down. It was then that Mrs. Hung noticed the female robber's distinctive gait. According to Mrs. Hung, the female robber walked in a "tiptoe" fashion, not touching her heels to the ground as she walked.

The female robber twisted Mrs. Hung's arm to turn Mrs. Hung around, pushed Mrs. Hung very hard to the ground, grabbed the back of Mrs. Hung's hair and pushed down. The female robber said something like, "I told you to -- this is armed robbery. Get down. Get down to the floor." Mrs. Hung was forced face down on the ground, causing injuries to her elbows and knees. The female robber pressed something that felt like a gun to Mrs. Hung's right temple.

The female robber then went to the cash registers and removed money from them. At that point Mrs. Hung hid under a curtained table and did not come out until Herrera pulled her out after the robbers left the store. The entire robbery occurred in one minute or less.

Ramandeep Singh was in his car about 50 feet away from the Blockbuster Video store at the time of the robbery. Lights were on in front of the store. Singh saw two people wearing masks and black clothing rush into the store. He then saw someone on the floor inside the store.

Singh called 911 and began to drive away. As he was leaving, he saw a gold Lexus parked in the middle of the street, blocking his path. Singh could not see if there was anyone in the Lexus. Five to seven seconds later, Singh saw the two masked individuals run into the Lexus. One got in the backseat of the car. Singh testified the driver of the Lexus was a heavy-set male.

Singh could not read the Lexus license plate number while they were at the Blockbuster Video store, but he remained on the phone with the 911 operator and followed the Lexus. The streets were lit and there was little traffic. Singh reported to the 911 operator that he was following a four door, gold colored 1990s Lexus LS. Singh, a mechanic, was confident about his identification of the year and make of the car. Singh also noticed that the Lexus had "flashy" rims.

Singh lost sight of the Lexus briefly at various points during the time he followed it, but with the exception of one pickup truck, there were no other cars on the street and Singh eventually ended up behind the Lexus. Singh was able to read the license plate number of the Lexus to the 911 operator.

Sumeet Kumar saw a gold colored Lexus pull into a Motel Six at high speed, stop for less than one minute out of Kumar's line of sight, then depart the area at a slow speed.

Police subsequently stopped the Lexus with the license plate number provided by Singh near the Florin Road exit of southbound Interstate 5. Defendant was in the driver's seat. Police did not find anything in the Lexus connecting defendant to the robbery.

Defendant is the registered owner of the vehicle Singh described. Singh subsequently identified defendant's Lexus as the car he observed and followed. Defendant testified her car had 18 inch chrome rims that were "pretty distinct[ive]."

Police took the Hungs to Florin Road for an in-field show-up.*fn1 Officer Nicholas Tavelli gave the following admonishment to the Hungs prior to the show-up: "You will be asked to view a person who has been contacted by the police. The person you are going to view may or may not be the subject you observed commit the crime. [¶] You are under no obligation to identify the person. If you identify the person as the subject you saw commit the crime, you will not be told if it is the person who -- who is suspected in committing the crime. [¶] Please keep an open mind while viewing the person and explain to the officer why or why not the person is suspect. Please do not take into consideration if the person is handcuffed or removed from a police vehicle. Please do not discuss the in-field show up with any other people."

Defendant was taken out of a patrol car. She was handcuffed. A uniformed police officer walked her to the front of Officer Tavelli's patrol car, where Mr. and Mrs. Hung were seated. The overhead spotlight, side lights and front white lights of Officer Tavelli's patrol car were on and pointed forward. Bright lights illuminated the area. Mrs. Hung stepped out of the backseat of Officer Tavelli's patrol car and stood behind the front passenger-side door of Officer Tavelli's car. She saw defendant walk 10 to 15 steps toward her. Defendant stood about 26 feet from Mrs. Hung. Five to 10 seconds after defendant stopped walking, Mrs. Hung identified defendant as the female robber. Mrs. Hung recognized defendant's gait as that of the female robber. Mrs. Hung described defendant's gait as "kind of tiptoe." Mrs. Hung also identified defendant as the female robber based on her height, slender build and the top half of her face. Mr. Hung was unable to make a positive identification.

Even though Mrs. Hung told police officers that the female robber was a light-skinned African American and defendant is not light-skinned, Mrs. Hung testified at trial she was very confident she had correctly identified defendant as the female robber at the in-field show-up. At trial, Mrs. Hung again identified defendant as the female robber. Mrs. Hung testified she recognized defendant's eyes as those of the female robber's because of the "age of the eyes."

Defendant testified at trial that she was at her friend Kiana Thorp's home on the night in question. Defendant felt ill and planned to drive to her mother's house in South Sacramento. But she exited southbound Interstate 5 at Richards Boulevard because she was nauseous. She claimed she stopped long enough to open her car door and throw up, and got back on Interstate 5. Defendant denied stopping at the Motel Six off Richards Boulevard.

The jury found defendant guilty of the second degree robbery of Herrera (Pen. Code, § 211; count one),*fn2 the second degree robbery of Alvarado (§ 211; count two), the second degree robbery of Mr. Hung (§ 211; count three), the false imprisonment of Mrs. Hung (§ 236; count four), the misdemeanor battery of Mrs. Hung (§ 242; count five), and the second degree commercial burglary of Blockbuster Video (§ 459; count six). The jury also found true the allegation that defendant was armed with a firearm.

DISCUSSION

I

Defendant contends her trial counsel rendered ineffective assistance by (a) failing to object to the in-field show-up and subsequent in-court identification; (b) failing to present expert testimony to undermine Mrs. Hung's identification of defendant as one of the perpetrators; (c) failing to object when the prosecutor referred to the fact that defendant remained silent after she was advised of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); and (d) failing to object when the prosecutor argued in closing that the jurors should put themselves in the position of the victims and should make the streets of Sacramento safer by convicting defendant.

To establish a claim of ineffective assistance of counsel, defendant must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699]; In re Cox (2003) 30 Cal.4th 974, 1019-1020.)

We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (People v. Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695].) "[Hence, t]actical errors are generally not deemed reversible, and counsel's decisionmaking . . . [is] evaluated in the context of the available facts. [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 389.) Moreover, counsel is not ineffective for failing to make a meritless objection or motion. (People v. Weaver (2001) 26 Cal.4th 876, 931; People v. Memro (1995) 11 Cal.4th 786, 834.) "To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 389; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268 [where appellate record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance must be rejected]; People v. Bess (1984) 153 Cal.App.3d 1053, 1059 [" '[A]n appellate court's inability to understand why counsel acted as he [or she] did cannot be a basis for inferring that he [or she] was wrong' "]; People v. Fosselman (1983) 33 Cal.3d 572, 581 ["Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].)

Likewise, "prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 389.) Defendant must show a reasonable probability of a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-698].) It is not enough for defendant to show that errors had some conceivable effect on the outcome of the case. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)

A

Defendant claims her trial counsel rendered ineffective assistance by failing to object to Mrs. Hung's identification of defendant as the female robber in the in-field show-up and later in court.*fn3 Defendant contends the one person show-up was unduly suggestive and unreliable, and that it tainted Mrs. Hung's in-court identification. Defendant asserts that this ...


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