Filed 5/31/16 P. v. Wilson CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A144395
v.
DEONTAY LAQUAWN WILSON,                                                  (Alameda County
                                                                         Super. Ct. No. 172500)
         Defendant and Appellant.

In re DEONTAY LAQUAWN WILSON,
                                                                         A147775
         on Habeas Corpus.


         A jury convicted defendant Deontay Laquawn Wilson of second degree robbery
with personal use of a firearm. (Pen. Code, §§ 211, 12022.53, subd. (b).)1 Defendant
admitted two prior convictions, one for robbery and the other for possession of a firearm
by a felon. The court sentenced defendant to 25 years in prison.2
         Defendant contends that the prosecution’s case against him “rested on an
impermissibly suggestive and unreliable identification” by the victim. He raises three
issues on appeal, each relating to the identification: (1) defense counsel was ineffective in
failing to move to suppress the identification; (2) the court erred in giving a standard jury

1
    All further section references are to the Penal Code.
2
  The court imposed a 10-year term for robbery (the upper term of five years doubled for
the strike prior). (§§ 213, subd. (a)(2), 667, subd. (a)(1).) Added to this are consecutive
terms of 10 years for the firearm enhancement (§ 12022.53, subd. (b)) and five years for a
prior serious felony conviction (§ 667, subd. (a)(1)).


                                                             1
instruction on factors relevant to an evaluation of eyewitness identification; and
(3) defense counsel was ineffective in failing to object to the instruction on eyewitness
identification. Defendant has also filed a petition for a writ of habeas corpus, which we
have consolidated with the appeal. In his petition, defendant claims ineffective assistance
of counsel for failing to move to suppress the victim’s identification, as asserted on
appeal, and also for failing to present a second eyewitness to the robbery and an expert
witness on the fallibility of eyewitness testimony.
       We shall affirm the judgment and deny the habeas corpus petition.
                        Summary of Evidence Presented at Trial
       There was evidence at trial of the following facts. Ron Jaillet buys cell phones
from individuals and resells them at a profit to earn extra income. On the afternoon of
June 18, 2013, Jaillet received a telephone call in response to his Internet advertisement
offering to buy iPhones. The male caller offered to sell two iPhones sealed in their
original packaging for $900. Jaillet agreed to meet the man near the Hayward BART
station and proceeded to drive there with his daughter in the car. As Jaillet neared the
station, the caller telephoned and asked to meet near the Oakland Coliseum. As incentive
for the longer drive, the caller offered to sell the phones for $750. Jaillet agreed to the
new location and price. As Jaillet neared the Oakland Coliseum, the caller telephoned
again and asked to meet at an address near the corner of San Pablo Avenue and 28th
Street in Oakland. Jaillet agreed. Jaillet arrived at the designated address around 6:30
p.m. and saw two young African-American men standing on the sidewalk. Jaillet drove
up to the men, rolled down his window, and asked are “you the guys that are selling the
phones.” They said yes and approached the rear doors to enter the car. Jaillet was
“surprised” because he had not invited the men into his car. He locked his car doors
before they could enter and told them he would meet them across the street.
       Jaillet parked his car and approached the men on the sidewalk. One of the men
was holding a bag. Jaillet was looking at the bag, assuming it contained the phones he
was there to buy, when the other man stepped toward Jaillet and pressed the muzzle of a
gun against his chest. The gun was a small black pistol that felt like it was made of “solid,


                                               2
heavy” metal. The gunman, later identified as defendant, told Jaillet, in an “intense”
“angry” tone of voice, “don’t move.” Jaillet did his best to stand still but he was
frightened and “shaking like a leaf.” Defendant continued to press the gun against
Jaillet’s chest while reaching into Jaillet’s pockets with his free hand. Defendant removed
$250 from Jaillet’s shirt breast pocket and $500 from his pants pocket. Defendant also
took Jaillet’s cell phone, car keys, and wallet. The wallet contained cash, a driver’s
license, debit cards and work identification. Throughout this period of 15 to 30 seconds,
defendant kept the gun pressed against Jaillet’s chest and repeatedly said “don’t move.”
Jaillet “was looking at his face mostly” during the encounter, with a few glances to the
gun. Their faces were about two feet apart and it was “complete daylight.” Jaillet is
nearsighted. He testified that, without glasses, he can see clearly for 10 feet and his vision
“starts getting blurry” at longer distances. He was not wearing glasses during the robbery
and, when asked at trial if he requires glasses when looking at someone two feet away,
replied “Absolutely not.” After emptying Jaillet’s pockets, the two men ran down 28th
Street. Jaillet flagged down motorists and asked them to telephone the police. The police
arrived within a few minutes.
       Oakland Police Officer Rodney Kirkland testified that he responded to Jaillet’s
report of a robbery around 6:30 p.m. Jaillet described the gunman as “male black, [age]
20 to 22, about five eleven, 170 [pounds], medium complexion, short black hair, goatee,
all dark clothing.” He described the second man as “male black, early 20s, five eight,
210 [pounds], medium complexion, black hair, white T-shirt, unknown color pants.” At
6:38 p.m., Officer Kirkland broadcast Jaillet’s description of the robbers.
       At 6:41 p.m., Officer Roberto Ruiz and another officer were in a marked patrol car
when they observed a car without license plates driving near Martin Luther King
Boulevard and 42nd Street. The location is less than two miles from the scene of the
robbery. The officers initiated a traffic stop for a vehicle code violation. Defendant was
driving the car and a second man was a passenger. Officer Ruiz detained the men,
believing they “fit the general description” of the robbers. A search of defendant’s
pockets found $500 in cash and debit cards and a work identification card in Jaillet’s


                                              3
name. The car was searched but no other items taken from Jaillet were recovered, nor
was a gun found.
       Officer Kirkland drove Jaillet to view the detained men. Kirkland testified that
police practice when performing a “field show-up” is to avoid influencing the witness or
“force an idea that they’re being pressured like this is the guy who committed the crime.”
The officer testified that he followed this practice with Jaillet and was “clear that this
person may or may not be the person who committed the crime.” Jaillet testified that
Kirkland did not pressure him to make an identification, telling him “if you recognize
somebody, let us know. If you don’t recognize him, let us know that as well.” Jaillet did
recall the officer saying, enroute to the in-field identification, that the police “had found
[his] identification in a vehicle and that [he was] to drive over there to see if [he] can
identify the individuals.” The officer did not, however, tell him “specifically that the
people he was going to show [him] were the ones that had taken [his] identification.”
       Kirkland and Jaillet arrived at the detention site around 7:00 p.m. Jaillet sat in a
patrol car across a four-lane street from where defendant and the other man were detained
in separate patrol cars and individually removed from the cars to be viewed by Jaillet.
The distance between Jaillet and the suspects was about 41 feet, according to Officer
Kirkland, or 26 feet according to Jaillet. Jaillet identified defendant as the gunman in the
robbery but did not recognize the other detained man.
       Jaillet was not wearing glasses when he made the in-field identification of
defendant. Jaillet testified that his vision was not “crystal clear” at the time but it was
clear enough for him to positively identify defendant. Jaillet said he recognized defendant
“right away,” viewing his face, build and hair. Jaillet testified he “was a hundred percent
positive that night that [his] identification was accurate.” Jaillet was wearing his glasses
at trial when he identified defendant as the gunman in court. Jaillet testified: “I’m
positive he’s the guy that held the gun to my chest. I’m hundred percent positive. I’m
looking at him now. I recognize him. I have no doubts.”
       On cross-examination, defense counsel had Jaillet remove his glasses and look at a
series of photographs on a television screen about 28 feet, six inches from the witness


                                               4
stand. One of the photos was of defendant but Jaillet failed to recognize him. On redirect,
Jaillet testified that he saw enough features in the distant photograph to think that the
individual depicted was “probably” defendant and made a positive identification when
the photograph was brought within two feet of him.
       No witnesses for the defense were presented. In closing argument to the jury,
defense counsel argued that Jaillet could not have made an accurate in-field identification
from 40 feet away given his impaired vision and that his in-court identification was based
on defendant’s presence in court, not an independent recollection of the robbery. Counsel
asserted: “Ron Jaillet is not a good witness. He’s not a credible man.”
                                         Discussion
       Defendant contends his conviction rests on “an impermissibly suggestive and
unreliable identification” by the victim and raises claims of ineffective assistance of
counsel and an erroneous jury instruction related to that identification. In a petition for a
writ of habeas corpus, defendant also claims ineffective assistance of counsel for failing
to present a second eyewitness to the robbery and an expert witness on the fallibility of
eyewitness testimony. We treat these claims in the order raised by defendant in his brief
and petition.

1. Defendant has not demonstrated that his counsel was ineffective for not seeking to
suppress the identification from the field show-up.

       Defendant claims the victim’s identification of defendant as the robbery gunman
resulted from an “unconstitutionally suggestive procedure” tying defendant to the crime
because the police told the victim they “found [his] identification in a vehicle and that [he
was] to drive over there to see if [he] can identify the individuals.” Defendant argues that
the police statement suggested the detained individuals were the robbers and that counsel
was deficient in failing to file a pretrial motion to suppress the “tainted” identification.
       “ ‘[T]he right to counsel is the right to the effective assistance of counsel.’ ”
(Strickland v. Washington (1984) 466 U.S. 668, 686.) “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having

                                               5
produced a just result.” (Ibid.) To establish ineffective assistance, defendant must show
both that his counsel’s performance was deficient and that he suffered prejudice. (Id. at
p. 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Counsel’s failure to challenge
an eyewitness identification is not deficient if the identification procedure comports with
due process. (People v. Taylor (1984) 162 Cal.App.3d 720, 725.) “Counsel is under no
obligation to make idle or frivolous motions.” (Id. at p. 726.)
       “Due process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the resulting
identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123.)
“While any on-the-scene-of-arrest show-up identification is inherently suggestive, the
[United States] Supreme Court has found such show-ups constitutional.” (U.S. v. Gaines
(9th Cir. 2006) 200 Fed.Appx. 707, 711, citing Neal v. Biggers (1972) 409 U.S. 188,
198.) California courts have long upheld the constitutionality of field identifications of a
single suspect. (See, e.g., People v. Craig (1978) 86 Cal.App.3d 905, 913; People v.
Anthony (1970) 7 Cal.App.3d 751, 764-765.) In People v. Gomez (1976) 63 Cal.App.3d
328, 335-337, the court held that a one person show up was permissible notwithstanding
the fact that the victim was told there was a suspect the police wanted her to look at and
defendant was standing outside a patrol car handcuffed with two officers flanking him.
Despite their suggestiveness, “the law favors field identification procedures when in close
proximity in time and place to the scene of the crime.” (In re Richard W. (1979) 91
Cal.App.3d 960, 970.) “[P]roperly conducted show-up identifications are a ‘salutary’
police practice permitting eyewitnesses to identify a perpetrator while the incident is
fresh on their minds.” (U.S. v. Gaines, supra, at p. 711.) The suggestiveness of an in-field
identification is “ ‘offset by the likelihood that a prompt identification within a short time
after the commission of the crime will be more accurate than a belated identification days
or weeks later.’ ” (In re Richard W., supra, at p. 970.) “ ‘[T]he immediate knowledge
whether or not the correct person has been apprehended is of overriding importance and
service to law enforcement, the public and the criminal suspect himself.’ ” (Ibid.)



                                              6
       Defendant has not shown that the identification procedure used in this case was
unnecessarily suggestive. Officer Kirkland, who drove Jaillet to view the detained men,
testified that he strove to avoid influencing the witness and was “clear that this person
may or may not be the person who committed the crime.” Jaillet testified that Officer
Kirkland never put pressure on him to make an identification, telling him “if you
recognize somebody, let us know. If you don’t recognize him, let us know that as well.”
Jaillet did recall the officer saying, enroute to the in-field identification, that the police
“had found [his] identification in a vehicle and that [he was] to drive over there to see if
[he] can identify the individuals.” It would have been better practice for the officer not to
have mentioned recovering the stolen identification. Nevertheless, the in-field
identification procedure used here was not unduly suggestive. Jaillet was admonished that
the detained men may not be the robbers and cautioned against making an identification
unless he recognized them. Jaillet identified only one of the two detained men as a
robber, which indicates that he independently evaluated the men free from any
suggestiveness in the procedure employed. (See In re Carlos W. (1990) 220 Cal.App.3d
372, 386-387 [fact that victim positively identified one suspect but made no identification
of suspect’s companion demonstrates in-field show-up not unduly suggestive].)
       Even if the in-field show-up was suggestive to some degree, the identification was
sufficiently reliable to be admissible. “[R]eliability is the linchpin in determining the
admissibility of identification testimony.” (Manson v. Brathwaite (1977) 432 U.S. 98,
114.) Reliability is assessed under the totality of the circumstances. (Neil v. Biggers,
supra, 409 U.S. at p. 199.) “[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the witness at the confrontation,
and the length of time between the crime and the confrontation.” (Id. at pp. 199-200.)
“Against these factors is to be weighed the corrupting effect of the suggestive
identification itself.” (Manson, supra, at p. 114.)



                                                7
       Jaillet had the opportunity to observe the gunman at close range. Their faces were
about two feet apart and Jaillet “mostly” was looking at the robber’s face during a
daylight encounter that lasted between 15 and 30 seconds. Jaillet provided a detailed
description of the gunman that was generally consistent with defendant’s appearance.
Defendant is three inches shorter and lighter in weight than Jaillet described the gunman
but there are no major discrepancies. Jaillet provided the description within a few minutes
of the robbery and less than 35 minutes passed between the robbery and Jaillet’s
identification of defendant as the gunman. Although Jaillet is near-sighted, was not
wearing glasses when he made the in-field identification, and his vision admittedly was
not “crystal clear,” he recognized defendant “right away,” viewing his face, build and
hair and testified he “was a hundred percent positive that night that [his] identification
was accurate.” These indicators of Jaillet’s ability to make an accurate identification are
far stronger than any suggestive effect of the identification procedure. Jaillet testified that
Officer Kirkland never put pressure on him to make an identification, telling him “if you
recognize somebody, let us know. If you don’t recognize him, let us know that as well.”
Under the totality of the circumstances, Jaillet’s identification was reliable and its
admission did not raise a substantial likelihood of irreparable misidentification as to
warrant its suppression. Absent “ ‘a very substantial likelihood of irreparable
misidentification’ . . . such evidence is for the jury to weigh.” (Manson v. Brathwaite,
supra, 432 U.S at p. 116.) “We are content to rely upon the good sense and judgment of
American juries, for evidence with some element of untrustworthiness is customary grist
for the jury mill. Juries are not so susceptible that they cannot measure intelligently the
weight of identification testimony that has some questionable feature.” (Ibid.) Counsel
was not deficient in failing to move to suppress the field identification.
       Moreover, any deficiency in this regard was not prejudicial under the facts of this
case. “Even if a defendant shows that particular errors of counsel were unreasonable . . .
the defendant must show that they actually had an adverse effect on the defense. [¶] It is
not enough for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” (Strickland v. Washington, supra, 466 U.S. at p. 693.) “The


                                               8
defendant must show that there is 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.” (Id. at p. 694.)
       There is no reasonable probability that the result of the proceeding would have
been different had the in-field identification been suppressed. Within 15 minutes of the
robbery, defendant was found less than two miles away driving a car without license
plates with $500 in cash and the victim’s stolen photo identification and debit cards in his
pants pocket. Coupled with this physical evidence is Jaillet’s courtroom identification.
Jaillet, who was wearing his glasses when testifying at trial, made an unequivocal
identification of defendant as the gunman. Defendant asserts that Jaillet’s courtroom
identification is itself inadmissible as the product of the in-field show-up. We disagree.
“[T]he taint of an unlawful confrontation or lineup may be dispelled if the People show
by clear and convincing evidence that the identification of the defendant had an
independent origin.” (People v. Ratliff (1986) 41 Cal.3d 675, 689.) The record here
supports a finding that Jaillet’s courtroom identification was based on his recollection of
the robbery. Jaillet testified at trial: “I’m positive he’s the guy that held the gun to my
chest. I’m hundred percent positive. I’m looking at him now. I recognize him. I have no
doubts.”

2. A standard jury instruction on factors relevant to an evaluation of eyewitness
identification does not violate due process.

       At defense counsel’s request, the court instructed the jury with CALCRIM
No. 315, which directed the jury to consider numerous questions when evaluating
eyewitness identification testimony, including “How certain was the witness when he or




                                               9
she made an identification?.”3 Defendant argues that CALCRIM No. 315 is “outdated,
unfair,” and violates due process by including witness certainty among the factors used to
evaluate the accuracy of identification testimony despite social studies showing an
eyewitness’s certainty in his or her identification is not a reliable indicator of accuracy.
Defendant maintains that, “[i]n light of the new scientific evidence” concerning the
fallibility of eyewitness identifications, either the trial court erred in giving the instruction
or trial counsel was ineffective in requesting the instruction without modification.
       Because defendant claims his right to due process was violated by use of the
instruction, we consider the contention on appeal even though defense counsel did not
object to the instruction and, in fact, requested it. (§ 1259; People v. Smithey (1999) 20
Cal.4th 936, 976, fn. 7.) There was no due process violation. It is true, as defendant
argues, that eyewitness identifications are fallible but fallibility is not a new discovery.
Almost 50 years ago, the United States Supreme Court observed that “[t]he vagaries of
eyewitness identification are well-known; the annals of criminal law are rife with


3
  CALCRIM No. 315 states in full: “You have heard eyewitness testimony identifying the
defendant. As with any other witness, you must decide whether an eyewitness gave
truthful and accurate testimony. [¶] In evaluating identification testimony, consider 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? [¶] • 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? [¶] The People have the burden of proving beyond a
reasonable doubt that it was the defendant who committed the crime. If the People have
not met this burden, you must find the defendant not guilty.”


                                               10
instances of mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228.)
The law has been responsive to this reality in evolving various protective measures to
lessen the risk of mistaken identification. To this end, “vigorous cross-examination,
protective rules of evidence, and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved beyond a reasonable doubt” exist
to assist juries in assessing eyewitness testimony. (Perry v. New Hampshire (2012) 132
S.Ct. 716, 721.)
       Among these efforts to safeguard against mistaken identification, the California
Supreme Court approved use of a jury instruction listing factors relevant to the evaluation
of eyewitness identification. (People v. Wright (1988) 45 Cal.3d 1126, 1138-1144.) The
court held that “CALJIC No. 2.92 [CALCRIM No. 315’s predecessor] or a comparable
instruction should be given when requested in a case in which identification is a crucial
issue and there is no substantial corroborative evidence.” (Wright, p. 1144.) “[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.” (Id. at
p. 1141.)
       Among the list of relevant factors, CALJIC No. 2.92 included “[t]he extent to
which the witness is either certain or uncertain of the identification.” (People v. Wright,
supra, 45 Cal.3d at p. 1154.) The California Supreme Court later reaffirmed the propriety
of including a certainty factor in a jury instruction on the evaluation of identification
testimony (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232) and more recently
rejected the assertion that a trial court has a sua sponte duty to delete the certainty factor
(People v. Ward (2005) 36 Cal.4th 186, 213). The high court is well aware of studies
showing a “lack of correlation between the degree of confidence an eyewitness expresses
in his identification and the accuracy of that identification,” and was cognizant of these
studies when it first adopted a jury instruction listing witness certainty among the factors
to be considered by a jury considering eyewitness identification. (People v. McDonald
(1984) 37 Cal.3d 351, 369, overruled on other grounds People v. Mendoza (2000) 23


                                              11
Cal.4th 896, 914.) Nevertheless, the court approved listing “[t]he extent to which the
witness is either certain or uncertain of the identification” as a factor for the jury’s
consideration in evaluating an eyewitness identification. (People v. Wright, supra, at
pp. 1141, 1154.) The court did so against the argument of a dissenting justice who
maintained that the instruction would reinforce the mistaken “lay belief that the more
certain an eyewitness is of his identification, the more likely the identification is correct.”
(Id. at p. 1159 (dis. opn. of Mosk, J.).) The majority concluded that listing relevant
factors in a “neutral manner,” without endorsing “a particular psychological theory
relating to the reliability of eyewitness identifications” was the proper approach. (Id. at
p. 1141.) “The instruction should not take a position as to the impact of each of the
psychological factors listed. . . . An instruction that ‘explained’ the influence of the
various psychological factors would of necessity adopt the views of certain experts and
incorporate the results of certain psychological studies while discounting others. It would
require the trial judge to endorse, and require the jury to follow, a particular
psychological theory relating to the reliability of eyewitness identifications. Such an
instruction would improperly invade the domain of the jury, and confuse the roles of
expert witnesses and the judge.” (Ibid.) A neutral listing of factors, the court believed,
would respect the jury’s role in assessing witness credibility while still permitting counsel
to argue that a particular witness’s identification was unreliable.
       Whether or not the instruction would be improved by further clarifying the
relevance of witness certainty, there is no basis for declaring the instruction
unconstitutional as currently written. We are bound by California Supreme Court
authority approving the instruction with its certainty factor. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) We also note that the United States Supreme
Court continues to consider “the level of certainty demonstrated at the confrontation”
between the eyewitness and suspect as a relevant factor in evaluating a witness’s ability
to make an accurate identification. (Perry v. New Hampshire, supra, 132 S.Ct. at pp. 724-
725 & fn. 5.) Federal courts have recognized that there is “no United States Supreme
Court case holding that due process is violated when, in assessing the reliability of a


                                              12
witness’s identification of a defendant, the jury considers the witness’s level of certainty
in making the identification. On the contrary, the existing Supreme Court precedent
appears to approve of such considerations.” (Arroyo v. Biter (C.D. Cal. June 22, 2012,
No. ED CV 12-00088-GAF (RZ)) 2012 U.S.Dist. Lexis 180579, pp. **13-14.) The trial
court did not err in giving CALCRIM No. 315 with its certainty factor. Likewise, defense
counsel was not ineffective in failing to request modification of the instruction to omit the
certainty factor.

3. Defendant has not demonstrated that his counsel was ineffective for not presenting
Michelle Jaillet as a witness.

       Defendant contends that trial counsel was ineffective for failing to interview or
call as a witness Jaillet’s daughter, Michelle, who saw the robbery. Jaillet testified that he
drove to the Oakland meeting place with his daughter in the car and had her wait in the
parked car while he walked across the street and approached the men on the sidewalk to
discuss the cell phone purchase. The robbery occurred about 30 feet from the parked car
in which Michelle was sitting. Michelle is, in her father’s words, “mentally challenged.”
He explained that she does “basic work” at Hope Services “like put things in boxes and
things like that.” Hope Services is an organization that provides services to people with
developmental disabilities.
       Michelle did not testify at trial but she did speak to the police. A police officer
wrote down her statements and defendant submits these statements as exhibits to his
habeas corpus petition. Michelle’s birth date is excised from the statements and no other
information as to Michelle’s age is revealed in the record. In the statement she made
shortly after the robbery, Michelle said “I saw the guys talking to my dad then I saw my
dad waving his hands around. And the guys ran away towards 27th Street. I asked my dad
what happened and he said he got robbed.” Michelle described one of the men as “a
Black male, 20-25 yrs., 5’7”, heavy set wearing a white shirt” and the other as “a Black
male, 20 yrs., 5’9”, thin wearing a brown shirt.” Michelle said “I can recognize the two
guys if I see them again.” Michelle was taken to see defendant and his companion when
they were detained by the police. Michelle gave a second statement saying that she did

                                             13
not recognize either of the two men as a robber. She said the detained men were wearing
black T-shirts while she “remember[ed] that one of the guys [who committed the
robbery] was wearing a white T-shirt.”
       Defendant claims trial counsel was incompetent in failing to interview or to call
Michelle as a witness. He has not presented a sworn declaration from trial counsel
explaining the decision not to present Michelle as a witness, only a statement from
appellate counsel relating parts of a conversation with trial counsel. Appellate counsel
declares that trial counsel, who had the police statements in his file, said “he made a
strategic decision that calling [Michelle] would not help” defendant because counsel was
told Michelle “was developmentally delayed, like a child,” and Michelle “had said that
[defendant] was wearing the same T-shirt as one of the robbers.”
       Defendant has failed to show that counsel’s strategic decision not to call Michelle
as a witness was unreasonable. Defendant argues that Michelle’s developmental
disability did not necessarily disqualify her as a witness, which is true. But trial counsel
could reasonably believe that a jury would react unfavorably to subjecting a
developmentally disabled person to the rigors of questioning for the purpose of disputing
her father’s testimony. The usefulness of her testimony is also questionable. The
prosecution would no doubt argue that Michelle did not identify defendant as one of the
robbers but her father did because she was 30 feet from the gunman and her father was
only two feet from him, virtually face-to-face. Moreover, her description of the robbers
was consistent with her father’s description, apart from a slight difference in the
estimated height of the robbers and her height estimate is closer to defendant’s actual
height. Michelle also said, according to trial counsel, that defendant “was wearing the
same T-shirt as one of the robbers.” Defendant argues that trial counsel was mistaken
about a matching T-shirt because Michelle’s police statements said one robber wore a
brown shirt and the other wore a white shirt, and the detained suspects both wore black
shirts. But trial counsel may have been referring to information from another source. The
record offered here does not exclude that possibility. In any event, trial counsel could



                                             14
reasonably conclude that there was little to gain, and much to lose, by calling Michelle as
a witness.
       Defendant has not demonstrated that his counsel was ineffective for not calling
Michelle as a witness. “Because a petition for a writ of habeas corpus seeks to collaterally
attack a presumptively final criminal judgment, the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.” (People v.
Duvall (1995) 9 Cal.4th 464, 474.) “An appellate court receiving such a petition evaluates
it by asking whether, assuming the petition’s factual allegations are true, the petitioner
would be entitled to relief.” (Id. at pp. 474-475.) The petition fails to state a prima facie
case for relief.

4. Defendant has not demonstrated that his counsel was ineffective for not presenting an
expert witness on the fallibility of eyewitness testimony.

       Defendant claims his trial counsel was prejudicially deficient because counsel did
not present expert testimony on eyewitness identification. The record before us does not
disclose what actions, if any, trial counsel undertook to consult expert witnesses, nor has
defendant shown that an expert witness would have provided favorable testimony
particular to this case. Defendant’s argument is, effectively, that a competent attorney
must present an expert witness on the fallibility of eyewitness identification in every case
involving an identification. The argument is untenable. In an appropriate case, an
attorney may present expert testimony to assist the jury in understanding the scientific
and psychological evidence as to factors believed relevant to an evaluation of eyewitness
identifications. (People v. McDonald, supra, 37 Cal.3d at p. 377.) But there is “no
support for the claim that expert testimony must be presented by a defense attorney in
every case” where the prosecution relies on an eyewitness identification. (People v. Datt
(2010) 185 Cal.App.4th 942, 952.) “The decision whether to call certain witnesses is a
‘matter[] of trial tactics and strategy which a reviewing court generally may not second-
guess.’ ” (People v. Carrasco (2014) 59 Cal.4th 924, 989.) Defendant has failed to make
a prima facie showing of deficient performance by counsel.



                                              15
       There is also no showing of prejudice. As noted earlier, defendant’s conviction
does not rest on Jaillet’s identification alone. Within 15 minutes of the robbery, defendant
was found less than two miles away with the victim’s stolen photo identification and
debit cards in his pants pocket. There is no reasonable probability that the result of the
proceeding would have been different had an expert testified about factors impacting the
accuracy of eyewitness identifications. (Strickland v. Washington, supra, 466 U.S. at
p. 694.)
                                        Disposition
       The judgment is affirmed and the petition for writ of habeas corpus is summarily
denied.



                                                  _________________________
                                                  Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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