Filed 6/5/13 P. v. Nusser CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037479
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1092417)

         v.

ALAN NUSSER,

         Defendant and Appellant.


         A jury convicted defendant Alan Nusser of second degree robbery. The trial court
suspended imposition of sentence and placed defendant on probation with a condition
that he serve 10 months in jail. On appeal, defendant contends that (1) the trial court
erred by excluding evidence of third-party culpability, and (2) he received ineffective
assistance of counsel. We disagree and affirm the judgment.
                                                  BACKGROUND
         On New Year’s Eve 2009, Soon Ta Lee parked her car in a Bank of America
parking lot near where defendant was sitting inside a parked car. When Lee exited her
car, she saw defendant exit his car. Lee walked around to the passenger side of her car,
retrieved a bag from the front seat, and began walking toward the bank. She then noticed
“somebody was coming from [her] back.” She tried to look back, but “was hit on [her]
shoulder so that he [could] grab [her] bag.” Defendant then hit her bag with his hand and
grabbed it. Lee leaned forward to counteract the pulling, but defendant ultimately twisted
her arm, pulled the bag from her, and ran back to his car. He entered the rear driver side
passenger door, and the driver drove off. A witness noted the license plate number and
called 911. Police responded to the bank, and Lee described defendant to them as a
clean-cut “half white” male about 25 years old wearing suspenders and a white hat.
       Police officers traced defendant’s vehicle to a nearby residence and surrounded the
house. At some point, defendant’s mother exited the house carrying an infant. She told
the officers that her two sons and Jose Arreola were in the house. She gave the officers
her sons’ cell phone numbers. The officers called the numbers and announced that the
police were investigating a crime and requiring the people inside the residence to come
outside. They also used a patrol car public address system to announce the same. When
convinced that the occupants were not exiting, they fired batons into three different
windows. Defendant exited. His brother and Arreola followed. When defendant passed
his mother on the way to a patrol car, he remarked, “Sorry, mom.”
       The police compiled a photo line-up of six photographs that included defendant’s
photograph, and Lee identified defendant as the man who grabbed her bag to “[a]lmost
80 percent” certainty. When the police showed Lee another photo line-up that included
defendant’s brother, Lee did not identify anyone.
       Lee identified defendant at the preliminary hearing as the man who grabbed her
bag to the same 80 percent degree of certainty. Shortly before Lee testified at trial, a
police detective showed Lee a photo line-up that included Arreola’s photograph and Lee
identified Arreola as the man who grabbed her bag. At trial, Lee identified defendant as
the man who grabbed her bag and explained that she thought that Arreola’s photograph
looked similar to defendant’s photograph and the two photographs were of the same
person.




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       In his defense, defendant relied upon Arreola’s appearance, about which a police
officer opined was at least half-Hispanic.1 He argued that Lee had misidentified
defendant. He began as follows: “What do you do with the testimony given to you by
Soon Ta Lee? No question about it, she was robbed. [The prosecutor] is right in that
respect. Whatever it was, whoever did it, robbed Ms. Lee. No question. [¶] You don’t
have to go through the elements. You don’t have to worry about was it a taking, was
there force, was it against the will, was it criminal. I agree what happened out there on
December 31st, 2009 . . . was a robbery. Okay. That’s not an issue that you have to
consider. It was not a grand theft person. It was a robbery. Up or down, that’s what it
was. The question is, who did it.” He then urged that Lee’s 80 percent certainty did not
constitute certainty beyond a reasonable doubt. And he pointed out that Lee had once
identified Arreola as the perpetrator. He continued: “The only thing that has been
proved in this case is that Ms. Lee was robbed. That was proved beyond a reasonable
doubt. Who did it has not been. I submit to you, ladies and gentlemen, that the question
as to who robbed Ms. Lee, whether that has been proved beyond a reasonable doubt, the
only reasonable conclusion that you can come to is a resounding no, that has not been
proved beyond a reasonable doubt.” He then cast doubt upon the reliability of Lee’s
identification by noting evidentiary inconsistencies and Arreola’s closer resemblance to a
Hispanic male than defendant’s resemblance to a Hispanic male.
                      THIRD-PARTY CULPABILITY EVIDENCE
       During trial, defendant learned that Arreola had been arrested for a robbery
committed near the same Bank of America branch on Valentine’s Day 2010. The trial




       1
          The original police dispatch described the suspect as a Hispanic male adult. Lee
later told the investigating officers that the suspect was half white and the police updated
the description to say mixed decent.


                                             3
court granted defendant a continuance to review the police report and consider whether to
make a motion to admit any evidence arising from Arreola’s arrest.
       Defendant later made a motion “to introduce the fact of ARREOLA’s arrest and
being a charged defendant in that still pending criminal case” “of a robbery, kidnapping,
and assault with a deadly weapon . . . behind the very same Bank of America branch . . .
.” He argued that he had a federal constitutional right to proffer evidence that other
persons may have committed the crime.
       The People countered that the proffered evidence did not constitute third-party
culpability evidence because the charge against Arreola did not link him to the robbery of
Lee. They also posed that defendant was essentially seeking admission of character
evidence prohibited by Evidence Code section 1101, subdivision (a)2 (character evidence
in the form of specific instances of a person’s conduct is inadmissible when offered to
prove the person’s conduct on a specific occasion), and not excepted from that
prohibition on the issue of identity by section 1101, subdivision (b) (character evidence
that a person committed an act is admissible when offered to prove a fact other than
disposition to commit the act such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or sex-case defendant’s
unreasonable belief that victim consented).3 They finally urged that, if admissible, the
evidence should be excluded under section 352 (exclusion of evidence if probative value
is substantially outweighed by probability that admission will necessitate undue


       2
         Further statutory references are to the Evidence Code.
       3
         The People acknowledged that the evidence was arguably admissible under
section 1101, subdivision (b), because identity was in issue in this case and similar-act
evidence is admissible to prove identity. But they pointed out that the acts underlying
Arreola’s arrest and the robbery of Lee bore no similarity--the police report described
Arreola’s victim as Arreola’s creditor of a gambling debt who met Arreola behind a
Quality Inn and went into a shack with Arreola and an accomplice to gamble where
defendant and the accomplice beat the victim and took the victim’s ATM card.


                                             4
consumption of time or create substantial danger of undue prejudice, confusion of issues,
or misleading the jury) because there was no probative value in the mere fact of an arrest,
proving the underlying facts would necessitate a trial within a trial and consume an undue
amount of time, and the evidence was prejudicial to the extent it would allow the jury to
assume that Arreola robbed Lee because he was later arrested for robbery in the same
area.
        The trial court denied defendant’s motion. It explained its ruling at sentencing:
“Let me turn to the next issue, and that was the defendant’s motion and request to
introduce evidence of the arrest and prosecution of Jose Arriola [sic] for robbery and
other offenses. . . . [¶] I did read the briefs. And, again, just to clarify, I believe I clarified
this at the oral argument on the motion, but on page 2 of the defendant’s brief the defense
said that during periods of in limine the defense requested that Mr. Arriola [sic] be
allowed to be exhibited to Ms. Lee as she testified. The court took that matter under
submission for later decision. But actually the court did not take that matter under
submission. It was understood that Mr. Arriola [sic] could be produced at trial. And
after the People conducted a photo lineup, the defense withdrew their request to have Mr.
Arriola [sic] to be produced at trial. [¶] I did review the briefs and the materials cited, and
as I informed counsel at the appropriate time, I did deny the defendant’s request to
introduce that evidence concerning Mr. Arriola’s [sic] arrest and prosecution. I made
clear that the defense could argue that Mr. Arriola [sic] was, in fact, the perpetrator of
this crime under the standards set forth in the cases . . . and that was based on the existing
evidence admitted at trial and the victim’s identification concerning Mr. Arriola’s [sic]
photograph. [¶] However, the issue in this motion was the admissibility of the additional
evidence concerning Mr. Arriola [sic] to support the claim that Mr. Arriola [sic]
committed this robbery. The defense did not attempt to justify the introduction of that
evidence under Evidence Code section 1101. The evidence was still excluded under--
covered by section 1101[, subdivision] (a), and the defense did not even attempt to justify

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the admission of the evidence under section 1101[, subdivision] (b) under any of the
exceptions there to prove any of those relevant issues. [¶] . . . [¶] In addition to the fact
that the defense did not support the admissibility of the conduct under section 1101, I
would have also, as an alternative basis, would have excluded the evidence under section
352. Again, I would have found, and I did find that the evidence sought to be admitted
any probative value was substantially outweighed by the probability that the admission
would necessitate the undue consumption of time and would create a substantial issue of
prejudice or confusing the issues or misleading the jury. [¶] As I explained to counsel, the
defense could certainly argue, again, that Mr. Arriola [sic] was a perpetrator of this crime
. . . based on the existing evidence, but I did exclude the other evidence and prosecution
of Mr. Arriola [sic].”
         Defendant contends that the trial court erred in finding that evidence of the
Valentine’s Day robbery was inadmissible under section 352. There is no merit to this
point.
         As is apparent from our lengthy recount of the Valentine’s Day robbery
background, (1) defendant sought admission of that evidence as third-party culpability
evidence under federal constitutional principles, (2) defendant did not seek admission of
the evidence as character evidence on identity that caused the People to formally invoke
section 352 as a bar to admission, and (3) the trial court made no ruling grounded on
section 352. As to this latter point, it is crystal clear that the trial court did no more than
opine that it would have excluded the evidence under section 352 had defendant sought
admission under section 1101, subdivision (b). Defendant concedes as much in his
recount of the trial court’s remarks (“the trial court indicated that it would nonetheless
have excluded the evidence under Evidence Code section 352”). Because the trial court
made no ruling under section 352, we have no occasion to determine whether the trial
court erred in making a ruling under section 352. (Reid v. Google, Inc. (2010) 50 Cal.4th
512, 535.)

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                       INEFFECTIVE ASSISTANCE OF COUNSEL
         “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.) But the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S.
1, 8.)
         “To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim
that his counsel was ineffective, the appellate court must consider whether the record
contains any explanation for the challenged aspects of representation provided by
counsel. “If the record sheds no light on why counsel acted or failed to act in the manner
challenged, ‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ [citation], the contention must
be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
         Defendant bears a burden that is difficult to carry on direct appeal. (People v.
Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make
every effort to avoid the distorting effects of hindsight and to evaluate the challenged
conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561;
Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial
counsel’s representation was deficient “we accord great deference to the tactical

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decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling
vigorous advocacy by tempting counsel “to defend himself [or herself] against a claim of
ineffective assistance after trial rather than to defend his [or her] client against criminal
charges at trial.” ’ ” (In re Fields (1990) 51 Cal.3d 1063, 1069.) A court must indulge a
strong presumption that counsel’s acts were within the wide range of reasonable
professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart
(1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of
speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246
Cal.App.2d 343, 356.) As to failure to object in particular, “[a]n attorney may choose not
to object for many reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) This is the case especially when
trial counsel might reasonably have concluded that an objection would be futile. (People
v. Price (1991) 1 Cal.4th 324, 387.)
       Defendant complains about three asserted derelictions.
       The first instance is defense counsel’s failure to move in limine to exclude the
consciousness-of-guilt evidence (defendant’s delay in exiting the residence in response to
the police and the “Sorry, mom” statement). According to defendant, defense counsel
should have sought to exclude the evidence under the authority of section 352 because
the evidence of delayed exit was minimally probative given that he had no duty to exit his
home in the absence of a warrant and the evidence of his apology to his mother was
minimally probative because he could have been apologizing for the police who had shot
out the windows. Defendant continues that proving the manner of his arrest consumed an
undue amount of time and was prejudicial because it allowed an “implied showing of
consciousness of guilt.” Defendant’s analysis is erroneous.
       We emphasize that this issue does not concern the admissibility of evidence. The
consciousness-of-guilt evidence was admitted without objection--the trial court did not
exercise discretion and make a ruling. We therefore decline to follow defendant’s lead

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and review an evidentiary ruling that the trial court did not make. Defendant’s point
instead concerns whether trial counsel had reason to refrain from objecting and, if not,
whether the failure to object subjected defendant to prejudice. Thus, defendant must
necessarily demonstrate at the threshold that the trial court would have sustained his
objection (granted his in limine motion)--as a matter of law--had trial counsel made one.
This follows because failure to make such a showing is a concession that (1) the trial
court could have ruled either way on the objection, and (2) trial counsel could have
therefore reasonably concluded that an objection would be futile.
       As is apparent, defendant’s argument is no more than a reargument about a
discretionary matter rather than a demonstration that the trial court would have been
compelled to grant the supposed in limine motion as a matter of law. Moreover, his
assertion that the consciousness-of-guilt evidence was prejudicial because it allowed the
jury to infer consciousness of guilt not only concedes the evidence’s significant probative
value and the concomitant futility of objecting to its admission but also demonstrates his
failure to grasp section 352 principles. In applying section 352, “prejudicial” is not
synonymous with “damaging.” It refers to evidence that uniquely tends to evoke an
emotional bias against the defendant as an individual with very little effect on the issues.
(People v. Doolin (2009) 45 Cal.4th 390, 439.)
       The second instance is defense counsel’s failure to seek admission of the
Valentine’s Day robbery under section 1101, subdivision (b).
       Again, in this context, defendant’s burden is necessarily to show that, had trial
counsel sought admission on section 1101 grounds, the trial court would have been
compelled to admit the evidence. And, again, there is no question that defendant fails to
make the necessary showing given that (1) one could rationally view the Valentine’s Day
robbery as inadmissible under section 1101 because it was dissimilar to the New Year’s
Eve robbery (ante, fn. 3), and (2) the trial court actually supposed that the evidence was
admissible on section 1101 grounds but expressed that it would, in that event, exclude the

                                              9
evidence under the authority of section 352 because of its limited relevance and obvious
potential for delay and confusion.
       The third instance is defense counsel’s concession that Lee was robbed (force was
used) despite that (1) defendant was also charged with the lesser included offense of
grand theft, (2) the magistrate did not hold defendant to answer for robbery, and (3) “the
evidence at trial did not reliably show force.”
       While “a defense attorney’s concession of his client’s guilt . . . can constitute
ineffectiveness of counsel,” there may be times when it would be a reasonable trial tactic
to “ ‘adopt[] a more realistic approach’ ” and concede some facts. (People v. Gurule
(2002) 28 Cal.4th 557, 611, 612.) There is a strong presumption that counsel’s actions
were based on sound trial strategy, even when counsel concedes some degree of guilt.
(People v. Freeman (1994) 8 Cal.4th 450, 498.)
       In this case, there is a plausible tactical explanation for trial counsel’s decision to
concede that there was a robbery. The evidence of force was strong, if not
overwhelming. Defendant hit Lee in the shoulder. He hit Lee’s bag. He twisted Lee’s
arm. This was no simple purse snatching. On the other hand, Lee’s identification of
defendant was arguably equivocal and problematic. Under the circumstances, defense
counsel could have taken a realistic approach to focus on the mistaken-identity defense--
where he could question Lee’s recollection--instead of the lack-of-force defense--where
he would of necessity have to accuse Lee of lying about being hit and twisted. He could
have reasonably concluded that challenging the force evidence would have presented a
risk of alienating the jury, potentially resulting in a rejection of the mistaken-identity
defense. (See People v. Hart, supra, 20 Cal.4th at p. 631.)
       The California Supreme Court has rejected ineffective assistance of counsel claims
in similar cases, holding that partial concessions of culpability may be a legitimate
tactical choice by defense counsel where the incriminating evidence is strong. (See
People v. Hart, supra, 20 Cal.4th at p. 631; People v. Bolin (1998) 18 Cal.4th 297, 334-

                                              10
335; People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187; People v. Wade (1988) 44
Cal.3d 975, 988; People v. Ratliff (1986) 41 Cal.3d 675, 697; People v. Jackson (1980)
28 Cal.3d 264, 292-293.) Under these authorities, we conclude that defense counsel was
not ineffective for conceding the element of force as to the robbery count.
       Defendant’s claims of ineffective assistance of counsel therefore fail.
                                      DISPOSITION
       The judgment is affirmed.




                                                              Premo, J.




       WE CONCUR:




              Rushing, P.J.




              Elia, J.




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