P. v. Haywood CA3 ( 2013 )

Filed 7/10/13 P. v. Haywood CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C071389
Plaintiff and Respondent, (Super. Ct. No. 12F00833)
v.
PHARAOH BUB HAYWOOD,
Defendant and Appellant.
This appeal is from defendant Pharaoh Bub Haywood’s second trial for being a
felon in possession of a firearm and negligently discharging a firearm. His first trial
ended in a mistrial on those charges but with convictions on charges of evading a peace
officer, resisting a peace officer, and driving on a suspended license.
On appeal, defendant raises five contentions of ineffective assistance of counsel
and one of cumulative prejudice based on his ineffective assistance contentions.
Disagreeing with these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On a rainy new year’s evening in 2011, a Sacramento police officer noticed a
Chevrolet “muscle car” driving with its lights off. The officer turned on the overhead
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lights of his police car, but the Chevrolet sped away. After a few minutes, the Chevrolet
spun out, and the driver, who was defendant, fled on foot, jumping over some residential
fences. The officer, who had been chasing defendant, stopped and called for backup
when he heard a gunshot. The backup officers found defendant a short time later in a
nearby backyard. They could not find a firearm.
Within a few hours of defendant’s arrest, a forensic police investigator took
gunshot residue test samples from defendant’s hands. The samples were examined by
forensic criminalist Jason Hooks under an electron scanning microscope. On the sample
taken from defendant’s right palm, Hooks found four particles of gunshot residue. From
that finding, it was Hooks’s opinion defendant fired a weapon, handled a weapon, or was
in the vicinity of a fired weapon. Eight days later, a gun was found in a backyard
approximately 44 feet from where defendant was arrested.
DISCUSSION
Defendant contends his counsel was ineffective in the following five instances:
(1) failure to request exclusion of the gunshot residue testimony because it was
unreliable; (2) failure to call an expert to challenge the scientific value of Hooks’s
gunshot residue testimony; (3) failure to adequately cross-examine Hooks; (4) failure to
challenge Hooks’s “lack of scientific expertise and objectivity”; and (5) failure to
introduce (instead of successfully excluding from evidence) defendant’s misdemeanor
convictions from his first trial and the fact that marijuana was found near defendant when
he was arrested. Defendant concludes his contentions with an argument that these five
instances of counsel’s deficient performance were cumulatively prejudicial. As we
explain, we disagree on all points.
I
Failure To Seek Exclusion Of Gunshot Residue Testimony Based On Unreliability
Defendant contends defense counsel was ineffective because he failed to ask the
court to exclude Hooks’s gunshot residue testimony as unreliable based on People v.
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Kelly (1976) 17 Cal. 3d 24, 30. “In Kelly, the [California] Supreme Court held the
admissibility of expert testimony based on ‘a new scientific technique’ requires proof the
technique is reliable.” (People v. Therrian (2003) 113 Cal. App. 4th 609, 614, fn.
omitted.) “The technique is reliable if the proponent can show,” among other things,
“ ‘the technique has gained general acceptance in the particular field to which it
belongs.’ ” (Ibid.) Gunshot residue evidence has been deemed reliable and admissible in
California for more than three decades. (See, e.g., People v. Palmer (1978) 80
Cal. App. 3d 239, 251.) In Palmer, the court approved the then-new technique of using a
scanning electron microscope to observe and identify gunshot residue particles. (Id. at p.
250-254.) This was the same technique Hooks used to identify the incriminating gunshot
residue particles here. A more than 30-years-old technique (approved in a case that is
still good law) can hardly be characterized as new. Accordingly, defense counsel was not
ineffective for failing to object to this testimony as unreliable. (See People v. Osband
(1996) 13 Cal. 4th 622, 678 [counsel not ineffective for failing to raise a meritless
objection].)
II
Failure To Call An Expert To Challenge The Scientific Value
Of Hooks’s Gunshot Residue Testimony
Defendant contends defense counsel was ineffective because he failed to call an
expert to challenge the scientific value of Hooks’s gunshot residue testimony. We
disagree because defense counsel had a rational strategy for not calling such an expert.
(Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L. Ed. 2d 674, 694-695]
[defendant must overcome the presumption that the challenged conduct might be
considered sound trial strategy].) As detailed in defendant’s hearing to replace his public
defender in his first trial pursuant People v. Marsden (1970) 2 Cal. 3d 118, the public
defender had explored and rejected defendant’s request to hire a gunshot residue expert to
challenge Hooks’s testimony. The public defender explained he had talked with another
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gunshot residue expert and that calling that expert “would probably make it appear to the
jury that Jason Hooks from the district attorney’s lab had done a very good job analyzing
the [gunshot residue].” Thus, the public defender’s reasoning for not calling an expert to
challenge Hooks’s testimony provided a reasonable tactical reason why defense counsel
in this case chose the same course of action.
III
Failure To Adequately Cross-Examine Hooks
Defendant contends defense counsel was ineffective because he failed to cross-
examine Hooks on two points: (1) a Los Angeles Times article reporting that the Federal
Bureau of Investigation laboratory had discontinued analyzing gunshot residue in its
investigations because there was cross-contamination of samples; and (2) a 2006
Minnesota trial court ruling rejecting gunshot residue evidence as unreliable. We
disagree on both points.
As to the first, defense counsel asked Hooks at least 28 questions covering 16
pages of testimony eliciting the implication that a secondary source of contamination
could have caused the gunshot residue evidence here. The questions covered the gist of
the article, namely, that cross-contamination due to somebody else touching the gun or
due to other particles could account for a positive test of gunshot residue. Counsel’s
performance was not deficient simply because counsel chose this way of eliciting the
evidence instead of the way defendant now claims counsel should have.
As to the second, defense counsel reasonably did not cross-examine Hooks about
the 2006 Minnesota trial court ruling because in 2009, the Minnesota Supreme Court
affirmed a trial court ruling that gunshot residue evidence was reliable. (State v. Loving
(Minn. 2009) 775 N.W.2d 872, 878-879.) Defendant’s second trial was held in 2012.
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IV
Failure To Challenge Hooks’s Qualifications
Defendant contends defense counsel was ineffective because he failed to challenge
Hooks’s “lack of scientific expertise and objectivity.” Not so, because there was no
reasonable basis on which to challenge Hooks’s expertise, and the record shows defense
counsel had a reasonable strategy for challenging Hooks’s objectivity.
Hooks’s credentials did not provide reason for defense counsel to argue that
Hooks was unqualified. Hooks testified he had been a criminalist for 14 years. He had a
bachelor of science degree in forensics with a minor in chemistry and had taken several
master’s courses in forensics and one on scanning electron microscopy and
microanalysis, which was used here. His current area of expertise was gunshot residue
analysis, for which he had to undergo formal training that included reviewing the
scientific literature, discussing the field with other experts, studying known and unknown
gunshot residue samples, reviewing other scientists’ studies, and undergoing a
proficiency examination on gunshot residue analysis. He had testified as a gunshot
residue expert in four other cases. His credentials were similar to, if not stronger than,
the expert in Palmer, the case where the court approved the then-new technique of using
a scanning electron microscope to observe and identify gunshot residue particles.
(People v. Palmer, supra, 80 Cal.App.3d at pp. 254-255.)
To the extent Hooks could have been alleged to have been biased, defense counsel
elicited that possible bias. At the very end of cross-examination, defense counsel elicited
that Hooks worked for the district attorney’s office and that he had never testified as an
expert for the defense. This was a reasonable way to show the jury Hooks may have been
biased toward the People.
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V
Excluding Defendant’s Misdemeanor Convictions
And Marijuana Possession From Evidence
Defendant contends defense counsel was ineffective because he successfully
petitioned the trial court to exclude from evidence his misdemeanor convictions from the
first trial, which included driving on a suspended license, and his alleged possession of
marijuana found near where he was arrested. Defendant claims counsel should have
petitioned to keep this evidence in because the prosecutor wanted to use his flight to
prove conscious possession of the firearm, and the fact that he was driving on a
suspended license and possessed marijuana could have provided an alternative
explanation for the flight.
Counsel had a reasonable tactical reason for petitioning to exclude this evidence.
The evidence ran the risk of prejudicing the jury into thinking defendant’s flight-related
misconduct was part of a larger crime spree, and thus, the jury would have been more
inclined to find defendant guilty on the weapons charges. Defense counsel feared that the
jury would hear of these prior convictions and the marijuana possession and would
“impugn [defendant’s] character.” That in hindsight defendant feels counsel should have
pursued another strategy does not make the one pursued deficient. Indeed, defendant’s
second-guessing of trial counsel’s strategy is impermissible under the deferential review
of counsel’s trial tactics that we undertake on a claim of ineffective assistance.
(Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694].)
VI
There Was No Cumulative Prejudice
Defendant contends the cumulative nature of defense counsel’s deficiencies were
such that when aggregated together, they prejudiced him. As counsel was not deficient,
there are no errors to accumulate for such an analysis.
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DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
RAYE , P. J.
HOCH , J.
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