Filed 3/12/13 P. v. Martinez CA27
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B237168

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA377300)
         v.

CRISTOBAL MARTINEZ et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis
Landin, Judge. Affirmed.
         Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant Cristobal Martinez.
         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant Armando Zavala.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Linda C. Johnson
and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       Appellants Cristobal Martinez and Armando Zavala appeal their judgments of
conviction following a joint jury trial. Martinez was convicted of one count of attempted
                                     1
voluntary manslaughter (Pen. Code, §§ 664, 192), and Zavala was convicted of one
count of attempted premeditated murder (§§ 664, 187, subd. (a)). Martinez does not raise
any issues in the opening brief filed by his appointed appellate counsel. Zavala argues in
his appeal that the trial court prejudicially erred in instructing the jury on eyewitness
identification testimony with CALCRIM No. 315 and that his trial counsel rendered
ineffective assistance in failing to present expert testimony on the unreliability of
eyewitness identifications. We affirm.

            FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I.     The Charges
       The Los Angeles County District Attorney jointly charged Martinez and Zavala
with the attempted willful, deliberate and premeditated murders of George Lopez and
Jose Aguilar (§§ 664, 187, subd. (a)). It was alleged that each defendant and a principal
personally and intentionally discharged a firearm which caused great bodily injury within
the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). It was also alleged
that the offenses were committed for the benefit of, at the direction of, or in association
with a criminal street gang, and with the specific intent to promote, further, or assist in
criminal conduct by gang members (§ 186.22, subd. (b)). Martinez and Zavala each
pleaded not guilty to the charged offenses and denied the enhancement allegations.

II.    Prosecution Evidence
       A.     Margarita Lopez
       On May 31, 2010, George Lopez was residing at a multi-unit rental house on West
50th Street in Los Angeles. Lopez lived in the house with his girlfriend, Kathy Pinones,



1      All further statutory references are to the Penal Code.


                                              2
                                     2
and his daughter, Margarita Lopez. On that day, Lopez was gathered with his family
and friends in the front patio area of the house for a Memorial Day barbecue. Jose
Aguilar was one of Lopez‟s guests. As Margarita was standing on the patio, she noticed
a gray SUV drive by the house and then slowly drive by again an hour later. The driver
appeared to glance at the house when he drove by the second time. A few minutes later,
the SUV drove by the house a third time and stopped across the street. Three men exited
the vehicle. Martinez exited from the front passenger seat and Zavala exited from the
rear passenger seat.
       Martinez, Zavala, and the unidentified driver approached the group gathered at the
front of the house. The driver repeatedly asked the young men in the group where they
were from, and one of Margarita‟s cousins replied, “we don‟t bang.” At some point,
Lopez intervened and indicated to the men that, while he was a former gang member, his
family was not affiliated with gangs. He asked the men if they had a problem. The men
told Lopez that he should not be holding parties at the house because it “wasn‟t his hood
for him to be having people over.” Martinez in particular said “this is 50th street hood.”
       Lopez and the three men argued as they moved across the street. The driver
pushed Lopez and Lopez pushed him back. Lopez said to the driver, “Just chill. Just
leave it alone. . . I don‟t want problems.” The driver pulled a gun from the waistband of
his pants and held it at his side. In response, Lopez told the driver to “handle it like a
man and put [the] gun down.” When the driver refused, Lopez tried to grab the gun from
him and a struggle ensued. As Lopez wrestled with the driver on the ground, Martinez
grabbed Lopez from behind and lifted him up. Martinez pinned Lopez‟s arms behind his
head while the driver began firing his gun at Lopez from a distance of four to five feet.
The driver fired three shots at Lopez, hitting him once in his shoulder and twice in his
stomach. Immediately after Lopez was shot, Aguilar ran toward him. Zavala, who also
had a gun, turned to Aguilar and shot him three to four times. The driver also may have

2     For clarity and convenience, and not out of disrespect, we shall refer to George
Lopez as “Lopez” and his daughter, Margarita Lopez, as “Margarita.”


                                              3
fired a shot at Avila. Zavala, Martinez, and the driver then got back into their vehicle and
fled the scene.
       Shortly after the shooting, Margarita was interviewed at the scene by the police.
Margarita told the responding officer that the suspects had exited a silver SUV, stated
that “this is 50th Street hood,” and then engaged in a physical altercation with Lopez.
Margarita also said that, during the altercation, one of the suspects shot Lopez while
another shot Aguilar.
       On June 3, 2010, Margarita was shown a photographic lineup that included
Martinez and Zavala. Margarita identified Martinez as the man who grabbed and held
Lopez when he was shot. After reviewing Zavala‟s photograph, Margarita told the police
that he “possibly” was the person from the rear passenger seat, but she was not sure
                                                   3
because she did not get a “real good look at him.” At a December 2010 preliminary
hearing, Margarita made an in-court identification of Martinez. She did not identify
Zavala, but indicated at the hearing that he resembled the person from the rear passenger
seat. At the August 2011 trial, Margarita identified Martinez as the man from the front
passenger seat who grabbed and held Lopez as the driver shot him. Margarita identified
Zavala as the man from the rear passenger seat who turned and shot Aguilar as the group
was leaving.
       At trial, Margarita testified that she was familiar with Martinez prior to the
shooting. About twice a week, Margarita had seen Martinez, whom she knew as “Sicko,”
visiting the family that resided in the upstairs unit of the house. Margarita did not know
the other two men, but she had seen each of them in or around the house on one prior
occasion. Two weeks before the shooting, Margarita had seen the driver standing by the
side of the house with a group of people. A few weeks before the shooting, Margarita

3       At the preliminary hearing, Margarita testified that the officer who showed her the
lineup pointed to Zavala‟s photograph and told her that the police thought he was one
of the suspects. At trial, Margarita clarified that the officer only pointed to Zavala‟s
photograph after Margarita identified him as possibly being one of the individuals
involved.


                                              4
had seen the man who shot Aguilar in the common area of the house with one of the
tenants that Martinez would visit.
       Margarita also testified that she was 100 percent sure of her identification of
Martinez, but was still not sure of her identification of Zavala. She stated that she did not
get a good look at the man who shot Aguilar, but Zavala “seemed to look somewhat like
the person.” When asked to compare Zavala‟s lineup photograph with her recollection of
the man who shot Aguilar, Margarita testified that he “resembles him a lot, but . . . it‟s
really hard to tell.” She noted that, like the shooter, Zavala was bald, light-skinned, and
had a thin face, but the shooter had a tattoo on his neck whereas Zavala‟s photograph did
not show any neck tattoos. When asked to compare Zavala‟s height and build with that
of the man who shot Aguilar, Margarita testified that they were “the same.”

       B.     Katie Pinones
       Pinones, Lopez‟s girlfriend, was in the house preparing food when she heard an
argument taking place outside. She saw Martinez and two or three other men pushing
Lopez on the street. Pinones immediately ran to Lopez and told the men to calm down
and control themselves. As Pinones stood behind Lopez, one of the men pulled out a gun
and shot Lopez three times. Martinez and a third man who was tall and light-skinned
were standing about 10 feet away from Lopez when he was shot. The man who shot
Lopez then turned around and fired five shots at Aguilar. Pinones did not see where
Aguilar was standing during the shooting because her attention was focused on Lopez,
but she did recall that Aguilar tried to run away. Martinez and the other men then fled in
a SUV.
       On June 15, 2010, Pinones was shown a photographic lineup that included
Martinez and Zavala. Pinones identified Martinez as one of the men involved and told
the police that she was sure of her identification. She also told the police that the person
in Zavala‟s photograph resembled one of the other men, but she was not sure it was him.
At both the preliminary hearing and trial, Pinones made an in-court identification of
Martinez as one of the perpetrators. She testified at trial that she was familiar with


                                              5
Martinez prior to the shooting because she occasionally saw him visiting another tenant
at the house. She stated that she did not know Zavala and was not sure whether he
was also present at the shooting. When asked to compare Zavala‟s lineup photograph
with her recollection of the third man, Pinones related that both men were thin, bald, and
light-skinned. Pinones also testified that the officer who showed her the lineup
specifically pointed to Zavala‟s photograph and asked if she knew him, and she told the
officer she did not think that person was one of the perpetrators.

       C.     Jose Aguilar
       Aguilar was a guest at Lopez‟s barbecue. He had been drinking beer throughout
the day and was moderately to heavily under the influence of alcohol at the time of the
shooting. Aguilar was standing in front of the house where Lopez lived when his
attention was drawn to a fight on the street. He saw Lopez struggling with three Hispanic
men who were trying to take Lopez to the ground. Aguilar began to walk toward the
fight when Zavala turned and fired a gun at him from a distance of less than 20 feet.
Aguilar was shot twice in his stomach and three times in his leg. He recalled falling to
the ground as soon as he was shot and then waking up in an ambulance. He did not recall
seeing anyone shoot Lopez. Aguilar was wearing glasses for distance at the time of the
shooting.
       On June 14, 2010, while he was in the hospital, Aguilar was shown a photographic
lineup that included Martinez and Zavala. After reviewing the photographs, Aguilar
identified Zavala as one of the perpetrators and wrote the following about Zavala‟s
photograph: “In my best recognition, I think 13 . . . was the main gun runner.” Aguilar
later testified that he was on pain medication at the time of his statement and meant to
state that Zavala was the person who shot him. He admitted, however, that he was not
                                                                        4
certain of his photo identification at the time he was shown the lineup. At the



4     At the preliminary hearing, Aguilar initially testified that the officer who showed
him the lineup pointed out Zavala‟s photograph, but he immediately clarified that the

                                             6
preliminary hearing, Aguilar made an in-court identification of Zavala and testified that
he was 100 percent certain that Zavala was the person who shot him. At trial, Aguilar
again identified Zavala as the man who shot him and confirmed that he was still certain
about his identification. He also testified that the man who shot him had tattoos on the
back of his shaved head. Aguilar never identified Martinez as one of the other
perpetrators.

       D.       Ibrahim Francis
       Francis was also a guest at Lopez‟s barbecue. While he was standing on the front
porch of the house with three other young men, Francis saw a silver SUV stop on the
street. There were three Hispanic men inside the vehicle. The driver approached the
house and aggressively asked the men on the porch where they were from and what they
were doing in his neighborhood. One of Francis‟s friends answered, “we don‟t gang
bang.” The driver returned to his vehicle and looked in his rear view mirror. At that
moment, Lopez and Aguilar were walking quickly up the street toward the house.
       All three men exited the vehicle and engaged in a verbal altercation with Lopez
and Aguilar. The driver and front passenger argued with Lopez while the rear passenger
argued with Aguilar. Aguilar, who was not wearing glasses at the time, had his fists up
and appeared ready to fight. The front passenger showed Lopez a gun that he had on his
waistband, and a struggle ensued as the two men wrestled for the gun on the ground.
After the driver helped pull the front passenger away from Lopez, the front passenger
stood up and fired his gun at Lopez five times. As soon as the first shots were fired,
Aguilar began running from the scene. At that point, the rear passenger also pulled out a
gun and shot Aguilar from behind.
       At the preliminary hearing, Francis testified that Martinez was possibly the driver
or the front passenger and he was sure Martinez was the person who shot Lopez. He also



officer simply showed him the lineup and that Aguilar pointed to Zavala‟s photograph
on his own and identified him as the perpetrator.


                                             7
stated that Zavala was possibly the person from the rear passenger seat who shot Aguilar.
At trial, Francis described both the driver and the front passenger as short and dark-
skinned and the rear passenger as tall, bald, skinny, and light-skinned. Francis repeatedly
testified at trial that he did not recognize Martinez or Zavala and did not see any of the
men involved in the shooting in court. When asked how he felt about testifying, Francis
stated as follows: “I just want to get it over with and . . . to tell you the truth, I can‟t say
that it was them because I don‟t want to wrongfully accuse anyone of anything. So it will
be wrong for me to even say it was them and it wasn‟t them because I‟m not a hundred
percent even sure.” Francis admitted that he refused to view a photographic lineup after
the shooting because he did not want to be involved in any matter related to gangs. He
also admitted that he told the investigating officer on multiple occasions that he did not
want any further involvement in the case.

       E.      George Lopez
       Lopez suffered severe injuries in the shooting and had no recollection of the
events surrounding the shooting at trial. The parties stipulated that Lopez had a 2002
conviction for felony assault with force likely to cause great bodily injury.

       F.      Investigating Officer
       Los Angeles Police Detective Douglas Bell was the investigating officer in the
case and prepared the photographic lineup that was shown to the witnesses. He selected
the individuals included in the lineup based on their membership in the 50th Street gang.
Detective Bell denied that he ever pointed to any of the photographs before a witness
made an identification, or suggested to any witness that a particular photograph should be
selected. The only civilian witnesses that Detective Bell was able to locate and contact in
the case were those who testified at trial.

       G.      Gang Expert
       Los Angeles Police Officer Brandon Barron testified as an expert on the 50th
Street gang. According to Officer Barron, the 50th Street gang had approximately 15


                                                8
documented members, including Martinez and Zavala. The primary activities of the gang
included vandalism, theft, robbery, assaults with deadly weapons, attempted murder, and
murder. The shootings in this case occurred in the territory claimed by the gang.
Martinez had 50th Street gang tattoos on his wrists and legs, and Zavala had 50th Street
gang tattoos on his head, neck, back, and torso. Zavala also had tattoos of the initials
“L.A.” behind his right ear and the initials “S.C.” behind his left ear. Officer Barron
described two grand theft offenses committed by other members of the 50th Street gang
in 2006 and 2007, and one attempted robbery offense committed by Zavala in 2007.
When presented with a hypothetical based on the facts of this case, Officer Barron opined
that the crimes would have been committed for the benefit of the 50th Street gang and
with the intent to promote future criminal conduct by 50th Street gang members.

III.   Defense Evidence
       Neither Martinez nor Zavala called any witnesses to testify at trial. Over the
prosecution‟s objection, the defense was permitted to present evidence that, a few weeks
after the shooting of Lopez and Aguilar, Margarita was the driver of a car involved in a
separate gang-related shooting committed by her friend. Margarita later testified against
her friend in that case. In photographs taken a few days before that incident, Margarita
was shown holding a gun and making gang signs in the company of the friend who
committed the shooting. In other photographs, Margarita was shown kissing a gun.

IV.    Verdict and Sentencing
       The jury found Martinez guilty of the attempted voluntary manslaughter of Lopez,
and not guilty of the attempted murder or attempted voluntary manslaughter of Aguilar.
The jury made a true finding on the allegation that Martinez committed the attempted
voluntary manslaughter of Lopez for the benefit of, at the direction of, or in association
with a criminal street gang, and with the specific intent to promote, further, or assist in
criminal conduct by gang members under section 186.22, subdivision (b). The jury made
a “not true” finding on the allegation that Martinez personally used a firearm within the
meaning of section 12022.5, subdivision (a). The trial court sentenced Martinez to a total

                                              9
term of six years and six months in state prison, consisting of the low term of 18 months
on the attempted manslaughter count plus an additional five years on the gang
enhancement.
       The jury found Zavala guilty of the attempted willful, deliberate, and premeditated
murder of Aguilar, and not guilty of the attempted murder or attempted voluntary
manslaughter of Lopez. The jury made a true finding on the allegation that Zavala
committed the attempted murder of Aguilar for the benefit of, at the direction of, or in
association with a criminal street gang, and with the specific intent to promote, further, or
assist in criminal conduct by gang members under section 186.22, subdivision (b). The
jury also made true findings on the allegations that Zavala personally and intentionally
discharged a firearm which caused great bodily injury to Aguilar within the meaning of
section 12022.53, subdivisions (b), (c), (d), and (e). The trial court sentenced Zavala to a
state prison term of 40 years to life, consisting of a life term with a 15-year minimum
parole eligibility on the attempted murder count and gang enhancement plus an additional
25 years to life on the section 12022.53(d) firearm enhancement. The court stayed the
sentence on the remaining firearm enhancements.
       Martinez and Zavala each filed a timely notice of appeal.

                                      DISCUSSION

I.     Martinez’s Appeal
       We appointed counsel to represent Martinez on appeal. After examination of
the record, counsel filed an opening brief in which no issues were raised. On August 1,
2012, we advised Martinez he had 30 days in which to personally submit any contentions
or issues he wished us to consider. No response has been received to date.
       We have examined the entire record and are satisfied that Martinez‟s attorney has
fully complied with the responsibilities of counsel and no arguable issue exists. (Smith v.
Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 112-113;
People v. Wende (1979) 25 Cal.3d 436, 441.)



                                             10
II.    Zavala’s Appeal
       Zavala raises two arguments on appeal. First, he contends that the trial court
committed prejudicial error in instructing the jury on the factors to consider in evaluating
eyewitness identification testimony with CALCRIM No. 315. Second, he claims that his
trial counsel rendered ineffective assistance in failing to call an expert witness to testify
about the unreliability of eyewitness identifications.

       A.     Instructional Error
       Zavala first argues that the trial court violated his federal and state constitutional
right to due process when it instructed the jury, pursuant to CALCRIM No. 315, that it
could consider a witness‟s level of certainty in evaluating his or her identification of the
defendants. Citing various research studies and out-of-state cases on the reliability of
eyewitness identifications, Zavala asserts that this portion of the instruction was
erroneous because there is no established scientific correlation between certainty and
accuracy. This argument, however, has been repeatedly rejected by California courts.
       As an initial matter, we address the Attorney General‟s contention that Zavala
invited the alleged instructional error when his trial counsel stated that he had no
objections to the proposed jury instructions identified by the trial court, which included
CALCRIM No. 315. “The doctrine of invited error bars a defendant from challenging an
instruction given by the trial court when the defendant has made a „conscious and
deliberate tactical choice‟ to „request‟ the instruction. [Citations.]” (People v. Lucero
(2000) 23 Cal. 4th 692, 723-724.) However, the mere failure to object to an instruction,
as occurred here, is insufficient to show invited error. (People v. Moon (2005) 37 Cal.4th
1, 29, fn. 4 [rejecting invited error claim where “defense counsel merely acquiesced to
the instruction, and the record does not show whether counsel‟s decision was a tactical
one”]; People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20 [rejecting invited error




                                              11
claim where counsel failed to object to instruction because “merely acceding to an
                                                              5
erroneous instruction does not constitute invited error”].)
       CALCRIM No. 315 is an updated version of CALJIC No. 2.92. Both instructions
state that, when evaluating eyewitness identification testimony, the jury should consider,
                                                                           6
among other factors, the witness‟s level of certainty in the identification. In People v.
Wright (1988) 45 Cal.3d 1126, 1141 (Wright), the California Supreme Court held that
“a proper instruction on eyewitness identification factors should focus the jury‟s attention
on facts relevant to its determination of the existence of reasonable doubt regarding
identification, by listing, in a neutral manner, the relevant factors supported by the
evidence. [¶] The instruction should not take a position as to the impact of each of the
psychological factors listed.” The Court also expressly approved CALJIC No. 2.92,
explaining that “[t]his model instruction, with appropriate modifications to take into
account the evidence presented at trial, will usually provide sufficient guidance on
eyewitness identification factors.” (Ibid.) The majority in Wright rejected the dissent‟s
suggestion that CALJIC No. 2.92 was deficient in failing to explain the effects of the
enumerated factors because “[s]uch an instruction would improperly invade the domain

5       Even if failure to object to CALCRIM No. 315 at trial could constitute a forfeiture
of the issue on appeal, we may review any claim of instructional error that affects a
defendant‟s substantial rights irrespective of whether there was an objection in the trial
court. (§ 1259 [“appellate court may also review any instruction given . . . even though
no objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby”]; People v. Hudson (2006) 38 Cal.4th 1002, 1012; People v.
Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Whether the defendant‟s substantial rights
were affected, however, can only be determined by deciding if the instruction as given
was flawed and, if so, whether the error was prejudicial. That is, if Zavala‟s claim has
merit, it has not been forfeited. Therefore, we necessarily review the merits of his claim
that there was instructional error.
6      CALCRIM No. 315 specifically instructs the jury to consider 15 enumerated
factors, including “[h]ow certain was the witness when he or she made an identification.”
CALJIC No. 2.92 instructs the jury to consider the believability of the witness and 13
other enumerated factors, including “[t]he extent to which the witness is either certain
or uncertain of the identification.”


                                             12
of the jury, and confuse the roles of expert witnesses and the judge.” (Ibid.) The Wright
majority instead concluded that “the listing of factors to be considered by the jury will
sufficiently bring to the jury‟s attention the appropriate factors, and that an explanation of
the effects of those factors is best left to argument by counsel, cross-examination of the
eyewitnesses, and expert testimony where appropriate.” (Id. at p. 1143.)
       Citing Wright, subsequent cases specifically have rejected challenges to the use of
the “certainty” factor in CALJIC No. 2.92. In People v. Johnson (1992) 3 Cal.4th 1183,
1230-1231 (Johnson), the California Supreme Court first noted that “CALJIC No. 2.92
normally provides sufficient guidance on the subject of eyewitness identification factors.”
The Court then held that the jury was properly instructed on the “certainty” factor with
CALJIC No. 2.92 notwithstanding the defense‟s uncontroverted expert testimony that a
witness‟s certainty in an identification did not positively correlate with its accuracy.
(Id. at pp. 1231-1232.) The Court reasoned the jury was not required to accept the
expert‟s testimony even if uncontradicted, and the trial court was not permitted to instruct
the jury to view the evidence through the lens of the expert‟s theory. (Ibid.; see also
People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 [rejecting challenge to
“certainty” factor in CALJIC No. 2.92 based on California Supreme Court‟s approval of
instruction in Wright and Johnson], disapproved on other grounds in People v. Martinez
(1995) 11 Cal.4th 434, 452; People v. Sullivan (2007) 151 Cal.App.4th 524, 561-562
[same].)
       The “certainty” factor in CALCRIM No. 315 is substantively the same as the
factor set forth in CALJIC No. 2.92 and approved in Wright and Johnson. We adhere to
California Supreme Court precedent and accordingly conclude there was no instructional
error in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

       B.     Ineffective Assistance of Counsel
       Zavala next asserts that he received ineffective assistance of counsel in violation
of his federal and state constitutional rights when his trial counsel failed to present expert
testimony on the factors affecting the reliability of eyewitness identification evidence.


                                              13
The record reflects that, at the close of the prosecution‟s case, Zavala‟s counsel informed
the trial court that he “might use an eyewitness expert.” However, when trial resumed
the following day, Zavala‟s counsel rested, subject to admission of certain exhibits.
Zavala argues that his counsel‟s failure to call an eyewitness identification expert to
testify at trial constituted deficient performance because the prosecution witnesses‟
identification of Zavala as one of the perpetrators was “the essence of the case” against
him. While we agree that the eyewitness identification of Zavala was a critical issue in
the case, we conclude that his ineffective assistance claim fails on direct appeal.
       “„In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel‟s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel‟s
performance fell within the wide range of professional competence and that counsel‟s
actions and inactions can be explained as a matter of sound trial strategy. Defendant
thus bears the burden of establishing constitutionally inadequate assistance of counsel.‟
[Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 391; see also Strickland v.
Washington (1984) 466 U.S. 668, 694.)
       The California Supreme Court has “„repeatedly emphasized that a claim of
ineffective assistance is more appropriately decided in a habeas corpus proceeding.‟”
(People v. Jones (2003) 30 Cal.4th 1084, 1105.) “In order to prevail on such a claim on
direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose
for the challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313,
349; see also People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse
convictions on direct appeal on the ground of incompetence of counsel only if the
record on appeal demonstrates there could be no rational tactical purpose for counsel‟s
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

                                             14
there simply could be no satisfactory explanation. [Citation.]” (People v. Carter (2003)
30 Cal.4th 1166, 1211.) “Because the appellate record ordinarily does not show the
reasons for defense counsel‟s actions or omissions, a claim of ineffective assistance of
counsel should generally be made in a petition for writ of habeas corpus, not on appeal.‟
[Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728-729; see also People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance claim relating to
“why counsel acted or failed to act in the manner challenged . . . is more appropriately
decided in a habeas corpus proceeding”].)
       In support of his claim that his trial counsel rendered ineffective assistance in
failing to present an eyewitness identification expert, Zavala primarily relies on People
v. McDonald (1984) 37 Cal.3d 351 (McDonald), overruled on other grounds in People v.
Mendoza (2000) 23 Cal.4th 896, 914. The issue in McDonald was whether the trial court
abused its discretion in precluding the defense from introducing expert testimony on the
unreliability of eyewitness identification evidence. (McDonald, supra, at p. 361.) The
California Supreme Court held that “[w]hen an eyewitness identification of the defendant
is a key element of the prosecution‟s case but is not substantially corroborated by
evidence giving it independent reliability, and the defendant offers qualified expert
testimony on specific psychological factors shown by the record that could have affected
the accuracy of the identification but are not likely to be fully known to or understood by
the jury, it will ordinarily be error to exclude that testimony.” (Id. at p. 377.) However,
McDonald did not consider whether the failure of defense counsel to call an eyewitness
identification expert under such circumstances would constitute ineffective assistance of
counsel. Thus, “McDonald provides no support for the claim that expert testimony must
be presented by a defense attorney in every case where an eyewitness identification is
uncorroborated.” (People v. Datt (2010) 185 Cal.App.4th 942, 952.) To the contrary, the
McDonald court noted that “[w]e expect that such evidence will not often be needed, and
in the usual case the appellate court will continue to defer to the trial court‟s discretion in
this matter.” (McDonald, supra, at p. 377, fn. omitted.)



                                              15
       Whether to call certain witnesses is ordinarily a matter of trial tactics unless the
decision results from an unreasonable failure to investigate. (People v. Bolin (1998)
18 Cal.4th 297, 334; see also People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [“[t]he
decisions whether . . . to put on witnesses are matters of trial tactics and strategy which a
reviewing court generally may not second-guess”].) While the record on appeal reflects
that Zavala‟s counsel considered calling an eyewitness identification expert at trial, it
does not disclose the reasons for counsel‟s decision to ultimately forego such testimony.
Nor does the record affirmatively demonstrate the absence of any rational tactical basis
for counsel‟s decision. As the California Supreme Court has observed, “[e]xpert
testimony on the psychological factors affecting eyewitness identification is often
unnecessary.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995.) Although such
testimony arguably could have been helpful to the jury in this case where the reliability of
eyewitness identifications was a key issue, there may have been sound strategic reasons
for counsel‟s decision not to call an expert. Zavala‟s counsel may have concluded that he
could more effectively attack the accuracy of the witnesses‟ identifications of his client
through cross-examination. He also may have concluded that the factors which could
have adversely affected the reliability of the identifications in this case, such as stress and
the presence of a weapon, were within the jury‟s common understanding and could be
effectively argued to the jury without the aid of expert testimony.
       “That we can hypothesize a reasonable tactical basis for defense counsel‟s conduct
does not, of course, prove that counsel did have a reasonable tactical basis for his action
or inaction. But to support a claim of ineffective assistance of counsel, defendant must
prove that counsel had no such tactical purpose. [Citation.]” (People v. Jones, supra, 30
Cal.4th at 1122.) Here, the record on appeal sheds no light on the reasons why Zavala‟s
counsel considered, but ultimately decided not to call an eyewitness identification expert
at trial. Therefore, for purposes of appeal, we reject Zavala‟s ineffective assistance claim
and conclude that it is more appropriately decided in a habeas corpus proceeding.




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                                 DISPOSITION

     The judgment is affirmed.



                                          ZELON, J.


We concur:




     PERLUSS, P. J.




     JACKSON, J.




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