Filed 6/2/16 P. v. Gutierrez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,                                                          B264624

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA132726)
         v.

RICHARD ANTHONY GUTIERREZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Olivia
Rosales, Judge. Affirmed.


         Lenore De Vita, 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, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Richard Anthony Gutierrez (defendant) appeals from the
judgment entered after he was convicted of robbery and resisting arrest. He contends that
he received constitutionally inadequate assistance of counsel because his attorney failed
to object to eyewitness identification testimony or to request CALCRIM No. 315, a jury
instruction listing factors for evaluating eyewitness testimony. We conclude that
defendant has failed to demonstrate either counsel error or prejudice, and we affirm the
judgment.
                                     BACKGROUND
       Defendant was charged with two counts of second degree robbery, in violation of
Penal Code section 211 (counts 1 and 2);1 and with one count (count 3) of misdemeanor
resisting, obstructing, and delaying of a peace officer or emergency medical technician,
in violation of section 148, subdivision (a)(1). The information alleged as to counts 1 and
2 that defendant had suffered two prior serious or violent felony convictions within the
meaning of the “Three Strikes” law, sections 1170.12 subdivisions (a)-(d), and 667,
subdivisions (b)-(i), and within the meaning of section 667, subdivision (a)(1). The
information further alleged as to counts 1 and 2 that defendant served three prior prison
terms within the meaning of section 667.5, subdivision (b).
       A jury found defendant guilty as charged. In a bifurcated trial, the jury also found
true the enhancement allegations. On June 1, 2015, the trial court sentenced defendant to
a total term of 36 years to life in prison and one day in county jail. The sentence as to
count 1 was comprised of a third-strike term of 25 years to life in prison, plus two five-
year enhancements for priors, with the one-year enhancements stayed. As to count 2, the
trial court struck the prior convictions allegations and imposed a consecutive one-year
term, which was one-third the middle term. The court awarded 562 days of actual
custody credit and 84 days of conduct credit, and ordered defendant to pay victim
restitution, as well as mandatory fines and fees. Defendant filed a timely notice of appeal
from the judgment.

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


                                             2
Prosecution evidence
       On the afternoon of November 17, 2013, Mathew Oliva (Oliva) was in his car
waiting at a red light at Penn Street near Pickering Avenue, when defendant crossed the
street while staring at Oliva in a particular manner. Defendant then approached Oliva’s
open driver’s window, leaned into the car, and demanded Oliva’s money. When Oliva
replied that he had no money, defendant said, “I’m not fucking playing,” and “I’m dead
serious. Give me your money.” Defendant threatened to “bust a cap in your ass,” or
“pop a cap in your ass,” and moved his hand around toward his back. Frightened, and
thinking that defendant might have been reaching for a weapon, Oliva gave defendant his
wallet, which contained his driver’s license, California identification card, and bank
cards. When the light turned green, Oliva drove away and telephoned the police.
       Oliva testified that defendant was wearing a tank top, had tattoos on at least one
arm that he recalled, and had a mustache. About two hours after the robbery, when the
police brought Oliva to an alley where defendant was standing with other people, Oliva
recognized him right away. In January 2014, Oliva selected defendant, who was in
position No. 2 in a live lineup of six people, as the man who robbed him. Oliva identified
defendant in court as the man who robbed him, observing that defendant was staring at
him with the same look he gave while crossing the street. Oliva was one “hundred
percent sure” of his identification.
       On the same day that Oliva was robbed, two men assaulted Francisco Antonio
Vasquez Carranza (Carranza) as he walked along Pickering Avenue. Carranza testified
that one was a younger man, who appeared to be about 18 to 22 years old, and the other
appeared to be in his mid 40’s. The older man was wearing a black tank top and had
tattoos on both sides of his neck, at the base of his neck, and on his arm. After the older
man asked Carranza for money that Carranza said he did not have, the man threw
Carranza to the ground. Both men punched Carranza and tore at his pockets and the
older man took his wallet from his rear pocket. The wallet contained Carranza’s social
security card. Carranza chased the men as they ran on Pickering and Newlin Avenues,
and although he was far behind, he never lost sight of the two men until they entered a


                                             3
house on Newlin Avenue. Carranza called the police, who arrived within five minutes
and then entered the house. Later, police officers found Carranza at his home and drove
him to an alley, where he identified the two men in handcuffs as the robbers. Carranza
testified that he told the police that he was 100 percent sure of his identification.
Although defendant was one of the two men he identified, Carranza was later unable to
identify defendant as one of the perpetrators, either at trial or at the preliminary hearing.
At trial, Carranza testified that defendant was not one of the two men the police brought
out of the house, and that defendant was not one of the robbers. Carranza was also
shown the live lineup in January 2014, and identified the man in position No. 3 as the
robber, rather than No. 2, defendant.
       Carranza’s neighbor, Elvis Carrillo (Carrillo), witnessed part of the assault from
the other side of the street. Carrillo identified defendant in court as one of the assailants,
and a photograph of Angel Hernandez (Hernandez) as depicting the other. Defendant
was wearing a tank top and had a tattoo on his neck. Carrillo saw Carranza on the ground
while the two men beat him with closed fists. When Carranza stood back up, they beat
him back down to the ground, and then ran eastbound on Mar Vista Street. About 10
minutes later, the police took Carrillo to a nearby alley where he identified defendant and
Hernandez, who were there with three or four police officers and some women. Carrillo
was 100 percent certain of his identification, although he told the officers he was 80 to 90
percent certain because the suspects were wearing different clothes. Carrillo explained
that the change of clothes caught him off guard at first, but he then recognized the
robbers. Carrillo also viewed the live lineup conducted in January 2014, and identified
defendant in position No. 2. At trial, Carrillo was still 100 percent certain of his
identification.
       Whittier Police Officer Carl Martin testified that he was dispatched to the area of
the two robberies a few minutes after 1:00 p.m., where he was flagged down by witnesses
Ricardo Barrera (Barrera) and Carrillo. At 1:45 p.m., he received an anonymous tip to go
to a certain address on Newlin Avenue, Apartment G. There he found defendant. Officer
Martin later transported Carrillo to the area for a possible identification. Carrillo said he


                                               4
was not 100 percent sure, because defendant’s clothing threw him off. Officer Martin did
not consider this to be a positive identification. Carrillo told him that the men looked
familiar but were wearing different clothes, and he did not want to commit to a yes or no
answer. Barrera was not available for a show up at the time.
       Whittier Police Officer Jim Azpilicueta was also dispatched to the area of the
robberies. He spoke to Carranza, who gave a description of the robbers. One was a male
Hispanic between 28 and 40 years old, about 5’8,” thin build, wearing a black tank top,
white shorts, tattoos on his arms, and the other was much younger. Officer Azpilicueta
was then called to the apartment building on Newlin Avenue where Officer Martin and
other officers were waiting. An anonymous caller had described a suspect there as
wearing a gray tank top and white shorts, and as having a mustache. When he arrived,
Officer Azpilicueta saw defendant inside, sitting directly in front of the window. He was
wearing white shorts but no shirt. The officer saw tattoos on defendant’s arms which
matched the victims’ descriptions. Hernandez was also inside. Once outside the man
were patted down for weapons, handcuffed, and detained for a field show up.
       Officer Azpilicueta brought Carranza to the field show up. Before transporting
him, the officer read the standard field show up admonition to him in Spanish.2 As the
officer pulled into the alley, about 30 feet away from defendant and Hernandez, Carranza
immediately said, “Those are them.” When asked to identify the person who took his
wallet, Carranza identified defendant, and said both men had punched him. Officer
Azpilicueta took Carranza home and then brought Oliva to the alley after reading him the
field show up admonition. As soon as Oliva saw the two men, he said, “That’s him,”
referring to defendant. Oliva said he was 100 percent positive. Officer Azpilicueta


2      Officer Azpilicueta read it in English for the jury, as follows: “In a few moments I
am going to show you a person or persons who may or may not be responsible for the
crime. The fact that this person or these persons are in custody or handcuffed should not
influence your judgment. You are not obligated to make an identification. It is just as
important that the innocent person is freed from suspicion as to identify the guilty. Please
do not make any statements in front of the witnesses or suspects.”


                                             5
explained that during the field show up officers remained next to the suspects to prevent
them from escaping or running. There were no males present other than the suspects and
the officers. The women occupants of the apartment waited a short distance away.
       Defendant was arrested and placed into Officer Azpilicueta’s patrol car.3 While
searching defendant’s apartment Officer Azpilicueta found a black tank top on the floor
next to the chair in which he had seen defendant sitting. After being alerted by Sergeant
Hansen, Officer Azpilicueta looked into a nearby trash can and saw a cardboard toilet
paper tube with Oliva’s credit cards and identification inside.
       Officer Azpilicueta identified five photographs depicting defendant’s tattoos, one
on the right arm, one on the right side of defendant’s neck, another on the left side of
defendant’s neck, and one on the left forearm. Looking at defendant in court, Officer
Azpilicueta could see tattoos on right side of defendant’s neck, but that tattoo was not
apparent in his booking photograph. Similarly, Sergeant James De Masi, who helped
Officer Martin bring defendant into the station, testified that while the tattoo on the left
side of defendant’s neck was apparent in his booking photograph, the photograph did not
clearly show the tattoo on the right side. Observing defendant at trial, however, Sergeant
De Masi could see both tattoos.
Defense evidence
       Barrera testified that he saw two Hispanic men grab Carranza, his neighbor, and
throw him to the ground at about 9:00 a.m.4 Barrera took his son into his house and then
went outside to check on Carranza as the police were arriving. Barrera described the


3       When defendant was arrested, he was agitated, belligerent, upset, verbally abusive,
and physically resistant to many of the officers’ orders. Officer Martin, who transported
defendant to the station, called for the assistance of two other officers, and applied a
“semi-pain control hold” or “wrist lock” upon defendant’s wrist to gain his compliance
until they were past the main entry, when defendant again resisted. Defendant stiffened,
turned quickly toward Officer Martin, and bumped him, causing the officer to be pushed
against the wall. The officers then took defendant down to the ground and carried him to
a security cell.

4      All other witnesses testified that the attack took place around 1:00 p.m.

                                              6
taller of the two assailants as younger, and the shorter one as older, in his 40’s. Barrera
could not give more detailed descriptions, as he saw them for only two or three seconds.
In January 2014, he viewed the live lineup but was unable to make an identification; and
at trial, he was unable to identify anyone in the courtroom as having been in the lineup.
        The defense also called Deputy Sheriff Nicholas Neri, who conducted the live
lineup in January 2014. He testified that there were always six people in a lineup, five of
whom were “fillers” unrelated to the case. In this case, he went to the jail dormitories
and found five people, each with a similar weight, height, facial hair, hairstyle, and
ethnicity to defendant’s. He tried to choose fillers who would prevent the suspect from
standing out, and they were all dressed alike. Defendant was placed in the No. 2 position.
Carranza identified the man in the No. 3 position. Oliva chose No. 2, whom Officer Neri
identified in court as defendant. Carrillo also chose No. 2. A defense attorney was
present and given the opportunity to object to the filler selections, but no objection was
made.
        Defendant testified that he had nothing to do with the robbery.5 He claimed that
all the witnesses who identified him were mistaken, and that he had not worn a tank top
that day, but rather, a white long-sleeve T-shirt. Defendant admitted that the five
photographs shown at trial depicted his current tattoos, but denied that he had tattoos on
both sides of his neck on the day of his arrest. He claimed that although he had one of
the neck tattoos since 1994, he got the other neck tattoo in January or March 2014 while
in jail after his arrest. He admitted that tattooing in jail was prohibited.
        Defendant claimed that on the day of the robberies, he was home cleaning his
carport until about 10:00 a.m., he then went for a walk and jog about four blocks away
with his now ex-girlfriend or wife Crystal Trabezo (Trabezo), Hernandez’s mother.
Hernandez and his girlfriend Michelle remained in the apartment when they left.
Defendant and Trabezo stopped at a 7-Eleven store afterward, and arrived home between

5     The question from his attorney was, “And is it your testimony that you had
nothing to do with the robbery that’s been described in this trial so far?”


                                               7
11:30 a.m. and noon. Although defendant thought video from cameras at 7-Eleven would
have shown that he was there, he never told police he had been there that day. Defendant
also thought that Trabezo would be able to corroborate his whereabouts but she did not
testify. Hernandez was not home when defendant and Trabezo returned from their walk,
but Michelle and the baby were there. After defendant watched television for awhile,
Trabezo asked him to find her son because she was upset with him. Just as defendant left
the apartment to look for him, Hernandez came running home, so defendant resumed
watching television until the police arrived and tapped on the window. When defendant
opened the door, the officers pulled him outside, told everyone else to step outside,
placed defendant and Hernandez in handcuffs, and brought people to identify them.
Defendant and Hernandez were handcuffed and surrounded by three or four officers
during the identifications. Defendant denied that he had been shirtless when police
arrived, and claimed that he still wore the white shirt he had worn on his walk earlier.6
       Hernandez testified that he loved defendant who had been his stepfather since
Hernandez was about 13 years old. At the time of his testimony, 18-year-old Hernandez
was in juvenile custody due to a burglary adjudication. Defendant was about 45 years
old. In November 2013, Hernandez was almost 17 years old and lived with defendant
and his mother. Hernandez admitted robbing Carranza. He completed a six-month
placement in youth camp imposed as a result of the robbery. Hernandez claimed that
defendant was not involved in the robbery and did not take Carranza’s wallet; rather,

6      Defendant admitted being on parole at the time of the robberies, having been
convicted in 1997 of assault with a deadly weapon and personally inflicting great bodily
injury. Defendant also admitted his convictions of felony assault in 1994 and 1995.
Defendant denied resisting the police officers, explaining that his back spasms sometimes
affected the use of his leg. His anger toward Officer Martin was due to the officer’s
repeated attempts to speak to him despite not having read him his Miranda rights; so he
told him to “shut the fuck up.” Defendant claimed that Officer Martin grabbed his wrist
for walking too slowly, and then pushed him against the wall, causing him to lose
balance. His attempt to regain his balance caused Officer Martin to fall backward, and
then the officers “stomped” him with their boots, threw him into the sobriety tank, and
kicked him in the back and head. He did not require medical attention and there was no
report made of the stomping or kicking.

                                             8
Hernandez committed the crime with two men he had met in the park that morning, who
were in their 30’s. Hernandez did not know the men’s names, who they were, or how to
contact them. When Hernandez left the apartment, between 10:00 and 11:00 a.m.,
defendant had already left with Trabezo and the dog. Defendant was home when
Hernandez ran home after the 1:00 p.m. robbery. Hernandez claimed that he had not seen
defendant between those times, had not been with him, and did not know what he was
doing. He also said his unnamed fellow robbers ran away after the robbery.
       Hernandez testified that defendant had all his tattoos for years prior to November
2013, including the tattoos on his arms, shoulders, and back, as well as those on both
sides of his neck. Defendant also had a thick mustache in November 2013. Like
defendant, one of Hernandez’s accomplices had tattoos on his arms, wore his hair similar
to defendant’s hairstyle, and had a mustache. Hernandez could not remember what his
accomplices were wearing or where else they had tattoos. However, defendant “always”
wore tank tops, and Hernandez thought he was wearing a black one on the day of the
robbery.
       Robert Shomer, who has a doctorate in experimental psychology and human
behavior, testified as the defense expert in eyewitness identification. Dr. Shomer had not
interviewed any of the witnesses in this case and did not render an opinion on the
accuracy of their identifications. He did not claim it was not possible for an eyewitness
to make an accurate identification, but testified that memories could change, and that
memory was easily influenced by suggestion. Research indicated that identifications
were more reliable when they were “fair,” meaning they were not conducted in a way to
suggest that the police were showing the witness someone connected with the crime. He
explained the three primary ways that the police obtain an identification: a live lineup;
photographic lineup; and a field show up. Studies had revealed a much higher rate of
error in field show ups than with photographic or live lineups. A live lineup would
produce the most accurate identification, but only when it was the witness’s first attempt
at identification, so that his memory would not be influenced by a familiar face. In
Dr. Shomer’s opinion, field show ups were inherently suggestive, as the witness who is


                                             9
still emotionally aroused is typically shown a suspect in police custody, often handcuffed,
with several officers surrounding him for officer safety. Stress in a normal person would
reduce his ability to resist suggestion, and more so in a person with a challenged mental
capacity.7 Dr. Shomer agreed that an immediate identification had the advantage of less
memory decay, but that advantage was outweighed by the inherent suggestibility of the
field show up. Dr. Shomer did not think that the confidence of the witness in his
identification was a good gauge of accuracy, especially if the witness appeared to become
more confident after repeated identifications.
                                       DISCUSSION
I. Field show up
       Defendant contends that the field show up procedures were impermissibly
suggestive and tainted all subsequent identifications by witnesses who first identified
defendant in a field show up. He also contends that he was deprived of his constitutional
right to effective assistance of counsel due to his attorney’s failure to seek suppression of
all in-court and out-of-court identifications by such witnesses.
       The Sixth Amendment right to assistance of counsel includes the right to the
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694;
see also Cal. Const., art. I, § 15.) To prevail on a claim of ineffective assistance of
counsel, defendant must establish two components: (1) that counsel’s representation fell
below an objective standard of reasonableness; and (2) “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.” (Strickland v. Washington, supra, at p. 694.) “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.)

7      Officer Azpilicueta observed that Carranza appeared to have some type of mental
disability, and Carranza’s trial testimony was sometimes disjointed, wandering into topics
that were not the subject of examination. Carranza testified that he was under the care of
a psychiatrist or psychologist and took medication, and that he had been hospitalized
once for a brain injury, but he denied that it affected him.

                                              10
       There is a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S. at p.
689.) Thus, “[r]eviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation].” (People v. Lucas
(1995) 12 Cal.4th 415, 436-437.) “[C]ounsel’s decision whether or not to object to
inadmissible evidence is a matter of trial tactics. [Citation.] Because we accord great
deference to trial counsel’s tactical decisions, counsel’s failure to object rarely provides a
basis for finding incompetence of counsel. [Citations.]” (People v. Lewis (2001) 25
Cal.4th 610, 661.) Moreover, the defendant “must establish deficient performance based
upon the four corners of the record. ‘If the record on appeal fails to show why counsel
acted or failed to act in the instance asserted to be ineffective, unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham).)
       Defense counsel’s reason for not bringing a motion to exclude the identifications
was not expressed on the record. Relying on People v. Nation (1980) 26 Cal.3d 169
(Nation), defendant contends that because such a motion would not be made in the
presence of the jury, there can be no satisfactory tactical reason for failing to make such a
motion. Defendant has overly abbreviated the holding in Nation. In fact, the court
stated: “Since an objection to the identification evidence would have been adjudicated
outside the presence of the jury, there could be no satisfactory tactical reason for not
making a potentially meritorious objection. [Citation.]” (Id. at p. 179, italics added.)
The Sixth Amendment does not require counsel to raise unmeritorious motions. (People
v. Gutierrez (2009) 45 Cal.4th 789, 804-805.)
       Defendant has failed to demonstrate that an objection to the identification
evidence in this case was potentially meritorious. The admission of identification
evidence does not violate a defendant’s right to due process unless the identification
procedure was unduly suggestive and unnecessary. (See Cunningham, supra, 25 Cal.4th
at p. 990.) Defendant makes the circular argument that the field show ups were unduly


                                              11
suggestive because showing a suspect in police custody is suggestive. “To begin with,
‘[t]he “single person show up” is not inherently unfair.’ [Citation.]” (People v. Ochoa
(1998) 19 Cal.4th 353, 413, fn. omitted; see Stovall v. Denno (1967) 388 U.S. 293, 302.)
The suggestiveness of a single suspect in handcuffs, surrounded by police officers is
often offset by “the interest of fairness to criminally accused persons and prompt, proper
and efficient law enforcement.” (In re Richard W. (1979) 91 Cal.App.3d 960, 969-970;
see also Stovall v. Denno, supra, at p. 302.)
       Defendant argues that the field show ups were unnecessary, as the suspects and
witnesses were unlikely to become unavailable through death or unconsciousness, and
there was nothing to prevent the police from transporting him to the station for a less
suggestive identification procedure. As the robbers showed themselves to be dangerous,
and were followed to a house in the neighborhood, we do not agree that any risk to the
witnesses was unlikely. Further, we do not agree that nothing prevented transporting
defendant to the station and holding him long enough to put together a photographic or
live lineup. Prior to the field show up identifications, defendant was only detained, not
arrested. Officer Martin testified that if no one had identified defendant, there would
have been no cause to arrest him. Furthermore, defendant’s resistance to arrest suggests
that he was unlikely to volunteer for a lengthy detention at the police station in order to
facilitate identification. Thus, prompt identification was necessary to justify either
arresting or releasing the suspects. Moreover, the prompt identification and arrest
preserved important evidence by allowing the officers to search inside and around the
apartment, leading to the discovery of the tank top near defendant’s chair and the toilet
paper tube in which Oliva’s credit cards and identification had been concealed. In
addition, the field show ups were not unduly suggestive, given the admonition read to
each witness prior to their arrival at the field show up location.
       Regardless, if the field show up had been unduly suggestive, the court would then
consider “whether the identification itself was nevertheless reliable under the totality of
the circumstances, taking into account 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


                                                12
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. [Citations.]” (Cunningham, supra, 25 Cal.4th at pp. 989-
990; see also Manson v. Brathwaite (1977) 432 U.S. 98, 104-107; Neil v. Biggers (1972)
409 U.S. 188, 199-200.) Here, the robberies occurred during daylight and both Oliva and
Carranza saw the perpetrator from a distance of a few inches. The perpetrator further
focused attention on himself by speaking to the victims. The attention of Oliva and
Carranza was sufficiently focused to allow them to observe that the robber wore a tank
top and had tattoos, for Oliva to observe that the robber had a mustache, and for Carranza
to see tattoos on both sides of defendant’s neck and discern the age difference of more
than 20 years between the two robbers. While Carrillo saw the Carranza robbery from
across the street, he was also able to see that the suspect wore a tank top. The similarities
in the descriptions given demonstrated their accuracy, and all three witnesses were
certain of their identifications. Finally, the three field show ups occurred within one to
two hours after the incident.
       To demonstrate unfairness, defendant has selected minor conflicts and isolated
circumstances, which he has exaggerated or understated. For example, defendant argues:
that Oliva’s identification was suspect, as he looked the robber in the face only while the
robber was speaking; that close combat probably prevented Carranza from seeing the
robber’s face; that Carranza’s observation of the robber’s two neck tattoos must have
been mistaken;8 that Carrillo may have been too far away to see the defendant’s face; that
there were conflicting reports of the color of the tank top; and that Carrillo was unable to
make an identification at the show up.9



8      Referring to his own testimony that one of his neck tattoos was newly acquired,
defendant claims that the observation was in fact mistaken; however, Hernandez testified
that defendant had tattoos on both sides of his neck for years.

9     Defendant understates Carrillo’s degree of certainty. In fact, Carrillo stated that he
was 100 percent certain, but told the officer that he was only 80 to 90 percent certain due

                                              13
       We conclude that the totality of the circumstances in this case demonstrates that
the identifications were reliable, and we are not persuaded otherwise by defendant’s
argument and conjectures. We further conclude that the trial court would have denied
any motion to exclude evidence of the field show ups, the live lineups, or the in-court
identifications; thus defendant has not met his burden to show error by his counsel or that
counsel had no satisfactory reason for not bringing a motion to exclude the
identifications.
       In any event, we agree with respondent that defendant has failed to demonstrate
prejudice, as other evidence supported defendant’s identity as the robber of both victims.
Carranza followed defendant and Hernandez to their apartment building without losing
sight of them, and then an anonymous call was made to the police, with the address and
description of the robbers. Officer Azpilicueta testified to collecting statements from
Carranza at his home and with Oliva at the crime scene, before going to defendant’s
apartment building based on the anonymous call. The officer thus had a description of
defendant when he saw him through the window, and before taking the witnesses to the
alley for a field show up. Inside the apartment was the younger Hernandez, who
admitted having committed the Carranza robbery with a man who shared many
identifying characteristics with defendant, including tattoos and a mustache. Although
Hernandez denied that defendant was his accomplice, the jury was not required to believe
him. The police found defendant’s tank top next to the chair in which he had been sitting
and Oliva’s stolen property in the trash outside defendant’s apartment. All three
witnesses testified that the robber wore a tank top and had tattoos; Oliva testified that the
robber wore a mustache; and Carranza testified regarding the age difference between the
two robbers and the tattoos on both sides of defendant’s neck.
       Such facts provide strong support for the witnesses’ identifications and preclude
any reasonable probability that the result of the proceeding would have been different
even if defense counsel had brought a successful motion to suppress that evidence.

to the change of clothes; and Officer Martin did not consider this to be a positive
identification.

                                             14
Defendant has thus failed to demonstrate error by counsel or prejudice, and his claim of
ineffective assistance of counsel must be rejected. (See Strickland v. Washington, supra,
466 U.S. at p. 694.)
II. CALCRIM No. 315
       Defendant contends that his trial counsel provided ineffective assistance by failing
to request that the jury be instructed with CALCRIM No. 315. Initially we observe that
the record does not support defendant’s assumption that the instruction was not given
because defense counsel failed to request it. In fact, the record reflects that when the trial
court identified the instructions requested by the defense and prosecution, CALCRIM
No. 315 was among them, although the court did not specify which party had made the
request. At that time, the court invited the attorneys to lodge any objections or requests
for changes, but none was made as to CALCRIM No. 315. We have found no further
mention of CALCRIM No. 315 in the record. It does not appear in the packet of
instructions given or in the reporter’s transcript of the instructions read to the jury, and
there is no explanation for its omission. Thus it is not apparent from this record that
defense counsel failed to request CALCRIM No. 315, as defendant contends.
       On this record, defendant cannot meet his burden to show that defense counsel’s
performance with regard to CALCRIM No. 315 fell below an objective standard of
reasonableness. Indeed, defendant cannot show what counsel did at all, if anything.
Thus, we must presume that whatever counsel did or did not do, it was the result of a
reasonable tactical decision. (See Strickland v. Washington, supra, 466 U.S. at pp. 689,
694.) Moreover, as the record is silent as to counsel’s reason for acting or omitting to act,
defendant cannot overcome this presumption where, unless the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for doing whatever he
did or did not do. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.)
       Defendant argues that counsel’s lack of an informed tactical reason not to request
the instruction can be demonstrated by applying the factors enumerated in CALCRIM
No. 315 for evaluating eyewitness testimony to the evidence in this case. As respondent
observes, however, such an analysis reveals a sound tactical reason for the defense to


                                              15
have objected to the instruction. Referring to the substantially similar factors in CALJIC
No. 2.92, one court stated: “The instruction cuts two ways. While it may be of benefit to
a defendant in a particular case, so may it enhance the prosecution’s argument in another.
Each case relying on identification by a single witness is as unique as are individual
human beings. Different witnesses will exhibit differing degrees of certainty, confidence,
credibility, and ability to communicate. Each incident will present its own unique
situation in terms of opportunity to observe. Stress may cause one witness to indelibly
imprint the identification in his or her mind and another to repress the incident. We can
readily see why a particular defendant may not want the trial judge to call to the jury’s
attention the very factors a prosecutor thinks are the strong points of the state’s case.”
(People v. Sanchez (1990) 221 Cal.App.3d 74, 77.)
       The Sanchez court’s remarks are equally applicable here. CALCRIM No. 315
would have told the jury to evaluate eyewitness identification by considering the
following questions: “Did the witness know or have contact with the defendant before
the event? [¶] How well could the witness see the perpetrator? [¶] What were the
circumstances affecting the witness’s ability to observe, such as lighting, weather
conditions, obstructions, distance, [and] duration of observation[ . . . ]? [¶] How closely
was the witness paying attention? [¶] Was the witness under stress when he or she made
the observation? [¶] Did the witness give a description and how does that description
compare to the defendant? [¶] How much time passed between the event and the time
when the witness identified the defendant? [¶] Was the witness asked to pick the
perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did
the witness ever change his or her mind about the identification? [¶] How certain was the
witness when he or she made an identification? [¶] How certain was the witness when he
or she made an identification? [¶] Are the witness and the defendant of different races?
[¶] [Was the witness able to identify other participants in the crime?] [¶] Was the witness
able to identify the defendant in a photographic or physical lineup?] [¶] . . . [¶] Were
there any other circumstances affecting the witness’s ability to make an accurate
identification?” (CALCRIM No. 315.)


                                              16
       When applied to the evidence in this case, only a few of the factors would favor a
finding of misidentification, for example: the witnesses’ lack of prior contact with
defendant; the victims’ stress; single-person or nearly single-person show ups; Carrillo’s
distance from the Carranza robbery; and Carranza’s later inability to make an
identification. On the other hand, as demonstrated by our discussion rejecting
defendant’s claim that the show ups were unfairly suggestive and unreliable, application
of a majority of the factors enumerated in CALCRIM No. 315 to the evidence would
have favored a finding that the identifications were accurate. For example, the witnesses
observed defendant in daylight; the weather was apparently fine, as defendant wore a
tank top; the two victims observed defendant from very close range; the time interval
between the event and the field show ups was fairly short; the witnesses’ descriptions
were similar and essentially matched defendant’s physical appearance; two of the
witnesses were later able to identify defendant from a live lineup and in court; the
witnesses were certain of their identifications, and two of them remained certain
throughout.
       In sum, the record does not reveal why CALCRIM No. 315 was not given despite
an apparent request by one of the parties, but it does suggest a rational tactical reason for
defense counsel to refrain from requesting it or for objecting to it.
       Moreover, if there was some failure on the part of defense counsel, defendant has
not demonstrated that he suffered prejudice as a result. The absence of an instruction on
eyewitness identification factors is harmless where the evidence of defendant’s identity
was strong and the appropriate factors were brought to the jury’s attention by cross-
examination, counsel’s arguments, and other jury instructions, and the jurors gave no
indication that they were uncertain or confused. (People v. Wright (1988) 45 Cal.3d
1126, 1144-1145 [CALJIC No. 2.92].) We have previously concluded that the identity
evidence was strong. Dr. Shomer gave lengthy expert testimony regarding the effect of
suggestion, changing memories, and stress on identification, as well as the value of
confidence, perceived certainty, and immediacy of the identification. In closing
argument, defense counsel pointed out conflicts in the witnesses’ testimony which


                                             17
suggested inattention, and faulty perception and memory, such as Oliva’s failure to notice
any tattoos on the robber’s hand, which were inside the car and very close, or the failure
of the witnesses to agree on the robber’s neck tattoos. The trial court read CALCRIM
No. 226, which informed the jury how to evaluate witness testimony, including such
factors as how well could the witness see, hear, or otherwise perceive, and remember the
subject of his testimony. Finally, the only confusion expressed by the jury concerned the
time of the assault on Carranza.
       We conclude that defendant has failed to demonstrate counsel error, and that there
is no reasonable probability that the result would have been different had the court read
CALCRIM No. 315. Defendant has thus failed to establish either of the two components
of a claim of ineffective assistance of counsel. (See Strickland v. Washington, supra, 466
U.S. at p. 694; People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ
We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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