People v. Yogeshwar Yogi Datt

Opinion

Defendant Yogeshwar Yogi Datt was convicted by jury trial of reckless evading (Veh. Code, § 2800.2, subd. (a)), resisting an officer (Pen.

The Honda was not registered to defendant or the passenger. Marquez’s attempts to contact the registered owner of the Honda were unsuccessful. He concluded that the registered name was “fraudulent” and that such a person did not exist. The Honda’s ignition “had been tampered with” so that “any other flat object” could be used instead of a key.

Marquez testified at trial and identified defendant as the driver he had seen flee from the Honda. A DVD of Marquez’s pursuit of the Honda, which had been recorded by a camera inside Marquez’s patrol car, was played for the jury. The prosecution presented its case in a single day, and the defense rested without presenting any evidence.

At the instruction conference, defendant’s trial counsel objected to the trial court’s modification of CALJIC No. 12.85 to instruct the jury that it did not have to unanimously agree on any three particular Vehicle Code violations in support of the “willful or wanton” element of the evading count. She asserted that jury unanimity was required. “I believe that they need to agree unanimously on which three acts that they find were in violation of the Vehicle Code.” The court overruled the objection.

Defendant’s trial counsel argued to the jury that Marquez “conducted a shoddy investigation, and he came to a dubious, untrustworthy, unreliable identification of [defendant] as the driver of that vehicle.” “Deputy Marquez needed to arrest somebody, he needed to justify that pursuit in order to vindicate himself’ for engaging “in a high speed dangerous pursuit over what started out as a registration violation.” “When you’re forming an opinion as to the reliability of Deputy Marquez’s testimony and his identification of Mr. Datt, you need to consider his opportunity to view the driver, and I think, it’s pretty much conceded that during the case he really didn’t get a good view of the driver. [¶] The best time that he had to look 3.5 seconds that he saw the driver exit the vehicle and running away, during the time he was looking at the man’s clothing. [¶] He was looking at the man’s hands; the man was driving away, [¶] It was dark; it was night, [¶] So, it is not a lot of opportunity to make a real clear, a real good, a real clear good look at the individual, [¶] And I think, one of the things that’s really important is the fact that he came in here and said that he broadcast a description of the person having a ponytail, but he didn’t make that broadcast at all. [¶] His broadcast was a black male adult, 6 foot to 6'3", wearing dark clothing, including a black jacket. [¶] That was his description. [¶] Mr. Datt is not a black man. [¶]

The prosecutor countered this argument in his rebuttal argument. “You’re going to have an instruction that we have not talked about yet, that’s jury instruction 2.92. [¶] These are factors to consider in proving identity by eyewitness . . . .” The prosecutor proceeded to identify how these factors applied to the evidence.

The jury was instructed with CALJIC No. 2.92. “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged, [¶] In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’s identification of the defendant, including but not limited to any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness’s ability following the observation to provide a description of the perpetrator of the act; [¶] The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶] The witness’s capacity to make an identification; [¶] Whether the witness was able to identify the alleged perpetrator in a physical lineup; [¶] The period of time between the alleged criminal act and the witness’s identification; [y Whether the witness had prior contacts with the alleged perpetrator; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶]Whether the witness’s identification is, in fact, the product of his own recollection; and; [¶] Any other evidence relating to the witness’s ability to make an identification.”

The trial court instructed the jury with the court’s modified version of CALJIC No. 12.85 regarding the reckless evading count. This instruction told the jury that one of the elements of this offense is that “[t]he driver of the pursued vehicle drove the vehicle in a willful or wanton disregard for the safety of persons or property.” The jury was instructed: “A willful or wanton disregard for the safety of persons or property also includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time the person driving commits three or more Vehicle Code violations, described elsewhere in these instructions. [¶] Willful or wanton

The jury returned guilty verdicts on all counts. The court found four prison prior allegations to be true.

After obtaining new counsel (his current appellate counsel), defendant moved for a new trial on precisely the same grounds he raises on appeal. At the hearing on the motion, defendant’s new counsel called his law partner to testify that a reasonably competent attorney would have consulted with an expert on eyewitness identifications. She also testified that she “would have wanted to have an expert to explain to the jury the real problems” regarding eyewitness identifications. When she was asked whether she could “think of any tactical reason that you wouldn’t call an ID expert in this case,” she responded: “I honestly—[¶] I would have definitely had an expert review the case, and then if they said they could help me, then I would have called one, but I definitely would have had a review done.” She did not know whether defendant’s trial counsel had consulted an expert.

The trial court concluded that the instruction was not erroneous and that it was a tactical issue whether to call an eyewitness identification expert in this case. The court denied the new trial motion. Defendant was committed to state prison for a seven-year term. He timely filed a notice of appeal.

A. Unanimity Instruction

Defendant claims that the trial court erred in instructing the jury that there was no need for the jury to be unanimous regarding the basis for its finding that defendant’s driving of the Honda while eluding Marquez was done in “willful or wanton disregard for the safety of persons or property.” He claims that the trial court was obligated to instruct the jury that it was required to be unanimous on the factual basis for this finding.

“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation];

Here, the “discrete criminal event” was defendant’s flight in the Honda from Marquez’s pursuit. There was but one flight from pursuit, which was continuous and was not divided into discrete criminal events. While there was evidence of various factual bases for a jury finding that defendant’s flight from pursuit was done in “willful or wanton disregard for the safety of persons or property,” jury unanimity is not required “as to the exact way the defendant is guilty of a single discrete crime.” The trial court’s instructions to the jury properly required the jurors to unanimously agree that defendant’s flight from pursuit was in willful or wanton disregard for the safety of persons or property, and these instructions correctly told the jurors that they were not required to agree on the “exact way” in which defendant’s flight from pursuit was in willful or wanton disregard for the safety of persons or property.

People v. Mitchell (1986) 188 Cal.App.3d 216 [ 232 Cal.Rptr. 438 ] (Mitchell) addressed an analogous issue. Mitchell was charged with violating Vehicle Code section 23153, subdivision (a), which makes it unlawful for a person to drive under the influence “and concurrently do any act forbidden by law.” (Veh. Code, § 23153, subd. (a).) He claimed that the trial court was required to instruct the jury that it had to unanimously agree on the specific “ ‘act forbidden by law’ ” that had accompanied his driving under the influence. (Mitchell, at p. 220.) The court rejected this contention on the ground that the two possible legal violations on which this element could be premised were just “alternate ways of proving” this element, rather than “separate chargeable offenses.” (Mitchell, at p. 222.) The same is true here. The different Vehicle Code violations upon which the “willful or wanton” element could have been premised were simply “alternate ways of proving” that element, not separate chargeable offenses of reckless evading.

Defendant claims that Mitchell is distinguishable because the contention in Mitchell was that the court should have given a unanimity instruction

Furthermore, a unanimity instruction would not have been required in this case in any event. “The unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. . . . This branch of the ‘continuous conduct’ exception . . . applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.” (People v. Crandell (1988) 46 Cal.3d 833 , 875 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ], citations omitted.) All of the Vehicle Code violations were closely connected in time (during the 18-minute pursuit) so they were part of a single transaction. There was no reasonable basis for the jury to distinguish between the various violations, and defendant’s identity defense obviously was the same as to all of the different Vehicle Code violations upon which the “willful or wanton” element could have been based. The trial court’s instruction regarding the lack of need for unanimity was not erroneous.

B. Ineffective Assistance of Counsel

Defendant contends that his trial counsel was prejudicially deficient because she did not present expert testimony on eyewitness identification at trial. Defendant relies heavily on People v. McDonald (1984) 37 Cal.3d 351 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ] (McDonald), overruled on another point in

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. Yet defendant argues that “[t]he only way for the jury to determine whether Deputy Marquez was ‘accurate’ [within the meaning of the instruction the jury was given on eyewitness identification testimony] would have been to have heard from an expert regarding the pitfalls and defects of uncorroborated eyewitness testimony.” (Italics added.) Defendant ignores the substance of the very detailed instruction that the jury was given to guide its evaluation of eyewitness identification testimony. The instruction identified a host of relevant factors, and defendant’s trial counsel utilized many of these factors in support of her argument to the jury that Marquez’s identification of defendant was suspect.

When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must establish that counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171 , 218 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ]; Strickland v. Washington (1984) 466 U.S. 668 , 687 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ].) “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland v. Washington, supra, 466 U.S. at p. 687.)

Defendant’s appellate contention fails at its origin. He has not shown that his trial counsel could have presented any favorable expert testimony. Defendant’s attempt to fill this gap at the hearing on his new trial motion fell short. Defendant produced testimony that a reasonably competent attorney

The judgment is affirmed.

Bamattre-Manoukian, Acting P. J., and McAdams, J., concurred.