Filed 8/7/15 P. v. Gallegos CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B258534

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA077433)
         v.

CARLOS GALLEGOS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. David
B. Gelfound, Judge. Affirmed.
         Christine Dubois, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General,
for Plaintiff and Respondent.
                                        _________________________
          Defendant and appellant Carlos Gallegos was convicted of second degree robbery,
in violation of Penal Code section 211.1 The jury found true the allegation that a
principal in the commission of the robbery was armed with a firearm, within the meaning
of section 12022, subdivision (a)(1). In a separate proceeding, the trial court found that
defendant had suffered a prior strike conviction within the meaning of the three strikes
law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)), he had suffered a prior serious felony
conviction (§ 667, subd. (a)(1)), and he had served two prior prison terms (§667.5, subd.
(b).)2 The court sentenced defendant to 16 years in state prison: five years for robbery
doubled under the three strikes law; five years for the section 667, subdivision (a)
enhancement; and one year for the principal armed allegation under 12022, subdivision
(a)(1).
          Defendant contends the conviction was based on an unduly suggestive single-
person photographic identification, and his trial counsel’s failure to make an in limine
motion to suppress the pretrial identification constituted ineffective assistance of counsel.
The substantive claim the pretrial identification was unduly suggestive is forfeited due to
the absence of an objection in the trial court. Defendant’s further claim that defense
counsel provided constitutionally inadequate representation is not cognizable on direct
appeal, and in any event, defendant fails to establish prejudice. We therefore affirm the
judgment.


                          FACTUAL AND PROCEDURAL HISTORY


          Chrustian Alonso and defendant first met in January 2013 through a mutual friend,
at which point defendant purchased a male JoJo brand watch from Alonso for


          1   All statutory references are to the Penal Code, unless otherwise indicated.

          2
         One of the prior prison term enhancements was not imposed because it was
based on the same offense used for the section 667, subdivision (a) enhancement. The
trial court dismissed the second prior prison term allegation.

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approximately $700. Alonso and defendant remained in contact after this initial
purchase, and Alonso at some point met defendant’s wife and daughter. A day before the
robbery, defendant made an appointment with Alonso to meet at Yadira’s jewelry store in
downtown Los Angeles to ensure that the jewelry Alonso was selling was authentic.
Alonso took with him a black Louis Vuitton bag containing around 25 items of jewelry,
including various watches and rings. During the meeting at the jewelry store Alonso was
taken to a back room to receive appraisals for the jewelry he was selling, but no jewelry
was sold at that time. Zarife Mejia, the owner of the jewelry store where defendant and
Alonso met, denied having taken Alonso to a back room and denied providing Alonso
with appraisals because she did not “know the prices on the watches. I don’t know if
they are original or not.” Upon leaving the jewelry store, defendant suggested to Alonso
that he could sell his jewelry to a man named Pedro. Defendant and Alonso arranged to
meet the next day on Rinaldi Street, after which Alonso would then follow defendant to
Pedro’s house to sell his jewelry.
       On February 19, 2013, between 7:00 p.m. and 8:00 p.m., Alonso met defendant on
Rinaldi Street near the 118 freeway driving a metallic gray Audi A8. Defendant, who
was driving a white Mercedes ML 550, led Alonso to the house of a man who was
supposed to purchase Alonso’s jewelry. Alonso followed defendant into the circular
driveway of a house, where they stopped and began talking on the phone about how
defendant’s wife was going to come out of the house and show them in. Alonso observed
an unknown woman exit the house, enter a car and leave.3 After his phone conversation
with defendant, Alonso got out of his car and reached for the Louis Vuitton bag, which
included a ladies Technomania watch, a Coram watch, and a guarantee for a JoJo watch.




       3 This woman was Christina Mayberry, who was at the house visiting a friend.
She testified that she saw a light car and a dark car parked in front of her friend’s home
when she came out to leave, but that the cars were parked on the street and not in the
driveway.


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       As Alonso was getting the bag, a black Honda Civic pulled up, and two men, one
with a gun, got out of the car and approached Alonso. The man with the gun aimed the
gun at Alonso and told Alonso to give him the bag of jewelry. A struggle ensued and the
man without the gun took the jewelry bag from Alonso. Alonso testified that he heard
defendant direct the men to take Alonso’s car and cell phone. The man with the gun
began to take the watch Alonso was wearing, and Alonso asked defendant to stop him
from taking it. Alonso testified that defendant told the man with the gun to leave the
watch, but the man with the gun took it anyway. Defendant then drove off in his
Mercedes along with the two men in the Honda, and Alonso quickly got into his car and
began pursuit.
       As Alonso approached the two vehicles, one of the men in the Honda leaned out of
the right passenger window and began shooting toward Alonso, at which point Alonso
sped up to pass the Honda and began pursuit of defendant’s Mercedes. Alonso lost sight
of defendant, who was driving at approximately 70 miles per hour down a residential
area, but found him again as defendant was quickly approaching Alonso’s vehicle.
Defendant’s car collided with the front of Alonso’s vehicle. Defendant continued driving
with Alonso in pursuit onto Reseda Boulevard. The traffic light was red as they
approached Rinaldi from Reseda. When Alonso turned right, defendant made a right turn
in front of him that resulted in a second collision.4 This collision caused damage to the
front right side of Alonso’s Audi and the rear left side of defendant’s Mercedes. After
the second collision, defendant continued driving onto the westbound 118 freeway
onramp. Alonso followed for some time until he decided to take the Topanga exit.
       Upon exiting the 118 Freeway, Alonso went to a gas station to call the police and
report the robbery. At around 7:50 p.m. on February 19, 2013, Los Angeles Police
Officer Robert Luna and his partner responded to a robbery call at a gas station in the
area of Topanga and Devonshire. The officers observed Alonso’s car had visible

       4 Alonso told the police officers who responded to his 911 call that he
purposefully “collided his front bumper with the suspect’s left rear courter panel in an
attempt to stop the suspect from getting away.”

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damage. They took Alonso’s account of the robbery and examined the area where
Alonso indicated the shooting occurred, but were unable to find any evidence of a
shooting. At the site of the second collision at Reseda and Rinaldi the officers recovered
three white objects that they later determined were part of the same make and model as
the Mercedes defendant was driving the night of the robbery.
       On February 20, 2013, Detective David Keating of the Los Angeles Police
Department interviewed Alonso at the police station. Alonso provided Detective Keating
with a serial number for the Corum watch that was stolen (1684869) as well as the login
information for his Craigslist account. Alonso was shown a photograph of defendant,
which he identified as that of the man who robbed him. When Detective Keating showed
Alonso the picture of defendant, “his palms became visibly sweaty. His face was
perspiring and he was tearful.” Later in the investigation, Detective Keating showed
Alonso a picture of a white Mercedes ML 550. Alonso identified the vehicle in the
picture as the Mercedes driven by defendant. It had damage consistent with the collisions
that occurred on February 19, 2013.
       On May 7, 2013, Alonso contacted Detective Keating to inform him that he had
found some of the jewelry that had been stolen from him on eBay. Detective Keating
organized a sting operation to recover Alonso’s stolen property and apprehend the sellers.
Officer Diane Hawking of the Los Angeles Police Department, working with Detective
Keating and Detective Ruben Arellano, responded to an eBay posting for a Corum watch
and arranged to meet the seller. On May 16, 2013, Officer Hawking met with the seller,
David Tagvoryan,5 who brought along the Corum watch he had listed on eBay. The
serial number matched that of the stolen Corum watch. David was detained. With
David’s permission, Detective Arellano, accompanied by other officers, went to the home
of David’s father, Oganes Tagvoryan, and found a light blue J.P.M. Techno watch as well
as a JoJo warranty card. Detective Phelps, along with Detective Arellano, showed



       5Because two witnesses who share the last name of Tagvoryan, we will refer to
them by their first names.

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Oganes a photo of defendant, and Oganes identified defendant as one of the men who
sold him the watches in February. Oganes explained to Detective Arellano that one of
the men who sold him the watches was short in height and had tattoos on his head.
       David testified that in February 2013, two men came into his father’s marijuana
collective asking if David was interested in purchasing jewelry. David was not
interested, but said he would ask Oganes. Oganes proceeded to talk with the two men
and purchased two watches. Oganes did not identify defendant as the person who sold
him the watches. When asked whether he recognized the picture of defendant as the man
who had sold him the watches, Oganes replied, “Maybe at that moment, yes.” Oganes
testified that when the two men came into his marijuana collective to sell the watches, he
conversed with them for 10 to 15 minutes and was standing about 3 to 4 feet away from
them, so he had a good look at them. When asked whether he had been honest with the
police when he first identified defendant through the photograph on May 16, 2013,
Oganes stated he had been honest and that the details of the sale of the watches in
February were more fresh in his memory at that point than they were during trial.
Oganes further explained that when he was asked to identify defendant, he was “very
sure” of his identification, but his recollection had changed at trial since it had been
“almost a year or more.”


                                       DISCUSSION


       Defendant first contends that Oganes’s identification was the result of an unduly
suggestive single-photo lineup procedure that created a substantial likelihood of an
inaccurate identification. Defendant’s failure to make a specific and timely objection,
however, forfeits his arguments on appeal. (People v. Cunningham (2001) 25 Cal.4th
926, 989; see also People v. Medina (1995) 11 Cal.4th 694, 753 [“Defendant asserts the
identification procedure was unduly suggestive and unreliable . . . but his failure to object
waived the point”].) We therefore turn to defendant’s contention that the failure to
suppress the pretrial identification constitutes ineffective assistance of counsel.

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       A criminal defendant’s right to effective assistance of counsel is based upon the
constitutional right to counsel guaranteed by the Sixth Amendment to the United States
Constitution and by Article I, section 15 of the California Constitution. (People v. Pope
(1979) 23 Cal.3d 412, 422, overruled on other grounds by People v. Berryman (1993) 6
Cal.4th 1048, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.) In
order to establish such a claim, a defendant must establish (1) that his counsel’s
performance fell below an objective standard of reasonableness, i.e., that counsel’s
performance did not meet the standard to be expected of a reasonably competent attorney,
and (2) that, but for counsel’s error, a different result would have been reasonably
probable, thus resulting in prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland v. Washington, supra, at p. 694.) Defendant has the burden of proving
ineffective assistance of counsel. (People v. Carter (2005) 36 Cal.4th 1114, 1189.) “If
the defendant makes an insufficient showing on either one of these components, the
ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
The Supreme Court has held that “[t]he performance component [of the analysis] need
not be addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.’ (Strickland v. Washington, [supra,] 466 U.S.[] at [p.] 697.)” (Smith v.
Robbins (2000) 528 U.S. 259, 286, fn. 14.)
       Defendant’s claim of ineffective assistance of counsel is not cognizable on direct
appeal because the record fails to indicate the motivations for counsel’s acts or omissions.
“‘If the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of
habeas corpus. [Citation.]’ [Citations.]” (People v. Carter, supra, 36 Cal.4th at p.

                                              7
1189.) Here, the record is silent on the issue raised by defendant, so it must be addressed
in a habeas corpus petition.
       Even if we were to consider the merits of the contention, the contention fails on
both the performance and prejudice prongs of Strickland v. Washington, supra, 466 U.S.
668. A single person showup does not, per se, violate due process. (People v. Ochoa
(1998) 19 Cal.4th 353, 413.) Defendant makes no showing that the manner in which the
photograph of defendant was shown suggested a particular response. Considering that
Oganes described to the officers the considerable amount of time he spent with the seller
of the watches, there appears to be little reason to assemble a larger photographic lineup.
       In addition, defendant cannot establish prejudice. Not only did Alonso describe
what happened in detail, remnants of defendant’s white Mercedes were found at the scene
of one of the collisions, officers observed damage to Alonso’s vehicle, and the stolen
property appeared on eBay and was traced, either directly or circumstantially, to someone
meeting defendant’s description. No defense testimony was offered to refute the
prosecution’s strong case. Prejudice has not been shown as a demonstrable reality.
       Trial counsel pursued a vigorous cross-examination of each of the prosecution’s
witnesses, particularly Oganes and Detective Arellano. Ultimately, the jury was the final
arbiter of Oganes’s reliability and credibility. We are satisfied that defendant did not
receive ineffective assistance of counsel.




                                             8
                                       DISPOSITION


      The judgment is affirmed.




             KRIEGLER, J.


We concur:




             TURNER, P. J.




             KIRSCHNER, J.*




      * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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