People v. Trimble CA2/8 ( 2022 )

Filed 10/17/22 P. v. Trimble CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314258
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA100864)
v.
LARECE SHANNA TRIMBLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Hector M. Guzman. Affirmed.
G. Martin Velez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Larece Shanna Trimble appeals
from her conviction of robbery for which she received probation.
She contends the trial court abused its discretion in denying her
request to continue the trial after the close of evidence, and that
her privately retained counsel was ineffective for failing to
present an expert on eyewitness identification.
We affirm.
BACKGROUND
Defendant was charged by information with one count of
robbery arising from an incident that occurred at a Target store
in Redondo Beach on December 3, 2018. (Pen. Code, § 211.)
At the arraignment, defendant pled not guilty and substituted
privately retained counsel in place of her appointed counsel.
Defendant thereafter waived her right to a jury trial.
In April 2021, the court granted defendant’s motion to
continue trial to June 2021.
At the June 8, 2021, bench trial, two Target employees,
Christopher Romero and LaMeshia Williams, testified about the
shoplifting incident they witnessed and both identified defendant
in court as the woman who had committed the theft.
Both Mr. Romero and Ms. Williams worked security and
loss prevention for the store. Mr. Romero testified he first
noticed defendant while he was monitoring the security cameras.
Defendant selected a large amount of different clothing items and
then walked to an area of the store without security camera
coverage. Mr. Romero told his coworker, Ms. Williams, to stay on
the cameras so he could go out onto the floor. Mr. Romero saw
defendant pull a bag from her purse, place the clothes in the bag
and head toward the front of the store without stopping to pay.
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When defendant walked out of the store with the
merchandise, Mr. Romero followed her out and stopped her,
identifying himself as security. Defendant swung the bag at
Mr. Romero, hitting him in the head and/or face. Defendant then
got into the front passenger seat of a car that appeared to be
waiting for her and fled.
Ms. Williams corroborated Mr. Romero’s testimony.
Ms. Williams continued to monitor the security cameras while
Mr. Romero went out onto the floor and then joined him outside
the store to help him detain defendant.
In addition to identifying defendant in court as the person
who committed the robbery, Mr. Romero and Ms. Williams also
separately identified defendant at the police station about a week
after the incident. They were separately shown six-pack
photographic lineups and positively identified defendant as the
shoplifter and confirmed those identifications in court.
Defendant testified in her own defense and denied ever
being at the Redondo Beach Target store. She said there was no
reason for her to go there since there was a Target about
five minutes from her home. Defendant said the woman on the
security video was not her and did not look like her. Defendant’s
brother also testified and said he did not believe the woman in
the video was his sister, that he spoke with his sister by phone on
the day of the alleged incident, and he believed her to be at home
taking care of their father. Both defendant and her brother
testified defendant had a visible tattoo on her chest and the
woman on the video did not. They also said defendant was more
heavy set and had a lighter complexion than the woman in the
video.
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The surveillance video of the incident and the six-pack
photographic lineups were admitted into evidence. The court
viewed the video footage twice.
The court found defendant guilty of robbery beyond a
reasonable doubt. In explaining its decision, the court said,
among other things, that the individual in the video “looks like
the defendant in this case.” The court also said it found the
identifications by Mr. Romero and Ms. Williams to be highly
credible. The court sentenced defendant to three years formal
probation, plus 50 hours of community service.
This appeal followed.
DISCUSSION
Defendant first contends the court abused its discretion in
refusing to grant a continuance of the trial after the close of
evidence. “ ‘The granting or denial of a motion for continuance in
the midst of a trial traditionally rests within the sound discretion
of the trial judge who must consider not only the benefit which
the moving party anticipates but also the likelihood that such
benefit will result, the burden on other witnesses, jurors and the
court and, above all, whether substantial justice will be
accomplished or defeated by a granting of the motion.’ ” (People
v. Zapien (1993) 4 Cal.4th 929, 972.) We find no abuse of
discretion.
In April 2021, defendant was granted a continuance of
almost two months. Then, on the eve of trial, defendant made an
ex parte request for a trial continuance to obtain a “facial
recognition expert.” Defendant argued that while the security
footage is “very clear video,” defendant maintained the woman
depicted was not her and “it would be helpful to her case to have
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an outside person other than herself and her brother or even one
of her friends testify that that’s not her in the video.”
The court denied the continuance request, explaining it was
untimely and defendant had not justified why the proposed
expert should be appointed and paid for by the court when
defendant had privately retained counsel.
Just before closing arguments, defendant raised the issue
again, arguing for a continuance to allow for the appointment of a
facial recognition expert and presentation of additional testimony
to the court. The court denied the request, reiterating the fact
defendant had been granted a prior continuance, had been in
possession of the video for awhile and had not justified the delay,
and had not presented information demonstrating defendant’s
indigency in order to justify appointment of the expert.
On appeal, defendant argues the continuance should have
been granted to allow for testimony by an expert in eyewitness
reliability issues, not facial recognition, because the case hinged
on the testimony of the two eyewitnesses. Regardless of the
substance of the proposed expert testimony, defendant has not
established an abuse of discretion by the trial court in denying
the request.
This was a court trial before an experienced judge,
knowledgeable about the issues related to eyewitness testimony.
There was video footage of the incident which the court was able
to review in addition to hearing the witness testimony.
The testimony of Mr. Romero and Ms. Williams established they
were able to observe defendant as the incident unfolded and were
not limited to a brief, stressful interaction with defendant as she
suggests. The interaction with defendant outside the store may
have been short, but that was only the very end of their
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observations of defendant. Both Mr. Romero and Ms. Williams
attested to separately viewing the six-pack photographic lineups
about a week after the incident and making a positive
identification of defendant as the shoplifter. There was no
evidence presented the lineup procedures were flawed. Moreover,
defendant has not shown specifically what the expert would have
attested to and offers only speculation and generalities. We have
no basis to conclude defendant was prejudiced by the denial of
the belated request.
Defendant also contends her trial counsel was ineffective in
failing to timely seek the appointment of an expert to testify at
trial. Again, we are not persuaded.
In order to prevail on a claim of ineffective assistance of
counsel, defendant had to demonstrate “both that trial counsel
failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in
the absence of counsel’s failings.” (People v. Cudjo (1993)
6 Cal.4th 585, 623, citing Strickland v. Washington (1984)
466 U.S. 668, 687–696.)
The decision about what witnesses should testify, including
any experts, is an inherently tactical decision for a trial attorney.
(See, e.g., People v. Mitcham (1992) 1 Cal.4th 1027, 1059
[decisions about whether a particular witness should testify is a
matter of trial strategy “which a reviewing court generally may
not second-guess”].) As our Supreme Court has explained, an
appellate 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
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bears the burden of establishing constitutionally inadequate
assistance of counsel. [Citations.] If the record on appeal sheds
no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation.” (People v. Gamache (2010) 48 Cal.4th 347, 391; see
also People v. Snow (2003) 30 Cal.4th 43, 95 [where appellate
record does not demonstrate whether counsel had a legitimate
tactical reason for a litigation choice, ineffective assistance claim
better resolved on a petition for habeas corpus].)
Here, given counsel’s request for an appointment of the
expert by the court, it appears the issue of consulting and hiring
an expert may have come down to a question of expense. Even
assuming, solely for the sake of argument, that competent
counsel would have sought the appointment of an expert more
expeditiously and with a proper showing of defendant’s alleged
indigency despite paying for private counsel, defendant has not
shown she would have received a more favorable outcome had
expert testimony been presented. As we already explained above,
the court had the benefit of the surveillance video of the incident
to view for itself, which it did more than once, in addition to the
testimony of Mr. Romero and Ms. Williams and the photographic
lineups with defendant’s photo they identified as the shoplifter.
Defendant has not shown what was the substance of the
purportedly favorable expert testimony she could have presented.
Rather she has only speculated that an expert may have
bolstered her defense. (People v. Datt (2010) 185 Cal.App.4th
942, 952–953 [ineffective assistance based on failure to put on
expert testimony not established where the defendant did not
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show there was favorable expert testimony that could have been
presented and assisted the defense theory].)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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