Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 200649
Siggins, J.
Demora Henderson appeals his conviction for murder, enhanced due to his personal and intentional discharge of a firearm causing death. Henderson contends his due process rights were violated as a result of (1) impermissibly suggestive lineups, (2) the prosecution’s failure to obtain or preserve certain potentially exculpatory evidence, and (3) the denial of production of a police report regarding another homicide. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rufino Gutierrez was murdered when he was shot in the back of his head while sitting in the front passenger seat of his car, next to his girlfriend, Christina Medina. She was driving. His assailant was in the back seat, and had arranged to meet Gutierrez in order to buy a.380 caliber handgun from him. Instead of paying Gutierrez for the gun, the perpetrator shot him with it.
The purchase of the gun was arranged through a series of calls to Gutierrez’s cell phone earlier the day of the murder. The calls were from phone numbers associated with friends and acquaintances of defendant Demora Henderson who did not have a cell phone and often borrowed one from others. One of the phone numbers that appeared repeatedly in the call records for Gutierrez’s phone belonged to the aunt of Henderson’s friend Dimitri Braud. Braud told police that he and Henderson were together at his aunt’s house during the afternoon and evening before Gutierrez was killed. Braud testified in this case as part of an agreement he reached with prosecutors. The People agreed that his guilty plea in an unrelated felony for which he received six months in jail would not be considered as a violation of his preexisting probation.
The prosecution presented evidence that while Henderson was in jail awaiting trial, he sent letters to his wife describing Braud as a “snitch” whom “the street” would “take care of.” Henderson also sent a letter to a friend that suggested he wanted the friend to “Bar-Ba-Cue” someone who was cooperating with police. The letter included a reporter’s transcript of proceedings that showed Braud was cooperating with the authorities.
On the night following Gutierrez’s murder, Braud and Henderson were beaten by a crowd of people when the two of them went looking to buy drugs from Gutierrez’s brother.
Henderson was identified as Gutierrez’s killer by Medina in a videotape of a live lineup and in court. He was charged with Gutierrez’s murder, with an allegation that he personally and intentionally discharged a firearm causing great bodily injury or death. The trial court denied Henderson’s motions (1) to exclude Medina’s eyewitness identification as the product of an impermissibly suggestive lineup, (2) to exclude evidence regarding calls received on Gutierrez’s cell phone on the ground police failed to obtain and preserve call records for phones belonging to other suspects, and (3) to pursue discovery regarding another homicide that Henderson contended would prove someone else killed Gutierrez.
Henderson was convicted as charged, and was sentenced to 50 years to life in state prison. He timely appealed.
DISCUSSION
A. Medina’s Identification of Henderson
Henderson argues the court’s refusal to suppress Medina’s identifications of him in a video lineup and in court was reversible error. Henderson premises this argument on his claim that a photo lineup shown to Medina before she was able to identify him was impermissibly suggestive. Even though Medina did not recognize Henderson in the photo lineup, he says “unconscious transference” may have subliminally affected Medina’s recollection of the night Gutierrez was killed.
Henderson supported his theory of “unconscious transference” at trial with a psychologist who testified as an expert about “issues that could influence people’s memory and performance in identification.” He stated, for example, that people may make mistakes when they fill in gaps in their memory while reconstructing past events; that people may forget where they learned things they think they remember; that being under stress limits how much information an observer can take in; and that “unconscious transference” may cause a witness to confuse a previously seen picture with the perpetrator of a crime because the face seems familiar. But all this testimony was of a general nature, and the expert cautioned that he was not expressing an opinion on what happened to any witness in this case. He did not interview Medina, and explained he was “just describing what is known and what is generally accepted, in [his] very narrow area of expertise....”
It was Henderson’s burden to show “an unreliable identification procedure. [Citation.] ‘The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 412; see also Neil v. Biggers (1972) 409 U.S. 188, 199-200.)
We review de novo the trial court’s ruling that the identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) “Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness’s identification the identity of the person suspected by the police. [Citation.] However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)
The night of the murder Medina described Gutierrez’s assailant to police as about 25 years old with a very dark complexion, wearing dark clothes with a “hoodie” that was raised to cover his head. She also said the shooter was skinny, with a long face, acne scars on his cheeks and pimples on his forehead. She thought she would recognize him if she saw him again.
A few days later, Medina was shown a photo lineup that contained Henderson’s photo, and the procedure was recorded on audiotape. Before Medina viewed the photos, the officer admonished her that the person who committed the crime might not be in the group of photos. She was told that she was “in no way obligated to identify anybody, ” and people’s appearances could change over time and “based on the photographic process, they can be lighter or darker.” Medina was unable to identify the killer when she viewed the photo lineup, even though she thought Henderson’s skin color and the shape of his face were similar to the shooter’s. When Medina remarked that the shooter was “maybe a little darker” than Henderson’s photo, and all the photos appeared “lighter” than the shooter, the officer reminded her that the lighting when a photo is taken can influence the appearance of a person’s skin color.
Several weeks later, Medina met with a police artist and helped develop a sketch of the shooter based on her memory of his appearance. Approximately a week after that, she was shown a videotape of a live lineup. She gasped audibly when she saw Henderson and she identified him as the killer. A videotape was made of Medina’s viewing of the videotaped lineup and was shown to the jury. Medina explained that the videotaped lineup was “more real” than the photo lineup because she could see the people walk and talk. Medina also later identified Henderson as the shooter at the preliminary hearing and at trial.
The participants in the videotaped lineup wore dark hooded sweatshirts similar to the shooter, walked across the stage, and spoke certain phrases the shooter used on the night Guttierez was killed. Medina said Henderson’s voice during the videotaped lineup was “a little off, ” “like... he was holding back, ” but she positively identified him as the shooter, commenting that “it wasn’t the other ones.”
Henderson contends the photo lineup first shown to Medina was impermissibly suggestive because the photos of others had lighter skin color than his, and several of them had differently shaped faces, features that Medina emphasized when she described the shooter to police. The court concluded the photo lineup was not unduly suggestive because the individuals “pretty much resemble[d] one another” and none of them stood out. All the photos were of youthful African-American males with varying skin tones in “roughly the same range, ” although Henderson’s skin color was “somewhat darker than the others.” The court also observed that “the range of face shapes is varied, with none of them being so dissimilar to the defendant’s that the defendant’s facial shape would stand out.”
Our review of the photo lineup confirms the trial court’s finding that the array of photos was reasonably balanced, and no single photo unfairly stood out. (See People v. Brandon, supra, 32 Cal.App.4th at p. 1052 [“there is no requirement that a defendant in a lineup... be surrounded by others nearly identical in appearance”].) While Henderson suggests the officer who conducted the first photo lineup unfairly directed Medina’s attention to his photo, the record shows the officer’s comments are more reasonably interpreted as efforts to clarify which photo Medina was pointing to when she made her observations regarding the shooter’s skin color and the shape of his face. The officer also admonished Medina before showing her the photos that the shooter might not be among them, and that she was not obligated to make an identification. In any event, Medina did not identify Henderson during the first photo lineup, and simply stated that his photo was similar in skin tone and shape of the shooter’s face. (Cf. Simmons v. United States (1968) 390 U.S. 377, 383-384 [initial misidentification during photo lineup may reduce trustworthiness of subsequent lineup or courtroom identification].)
We have obtained and reviewed the original exhibit of the first photo lineup from the trial court.
Police later showed Medina a second photo lineup while they were investigating information about another suspect that did not contain Henderson’s photo. Medina made no identification during the second photo lineup, and said none of the photos looked like the shooter. We consider unpersuasive, and highly speculative, Henderson’s suggestion on appeal that “[t]he second photo lineup... would have reinforced in [Medina’s] mind that appellant (whom she had seen earlier in a photo lineup) was the only person who seemed to match the shooter she had in mind.”
The court also found nothing suggestive about the videotaped lineup, and observed that differences in facial hair among the participants were not significant because it was more than two months after the shooting and Medina would have no reason to assume the suspect would look “exactly dead-on like the person who committed the homicide....” Because the court found the identification was not the result of impermissibly suggestive procedures, it did not consider whether the identification was reliable under the totality of the circumstances. (See People v. Ochoa, supra, 19 Cal.4th at p. 412.)
The court also stated that in its view, Henderson looked “totally different” in the photo used in the first photo lineup than he did in the videotaped lineup when Medina identified him as the shooter. Henderson does not challenge this observation by the court in his briefs on appeal.
“Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367; see also People v. Guillebeau (1980) 107 Cal.App.3d 531, 557 [fact that appellant was darker complected than other African-Americans in photo lineup did not render identification unduly suggestive, especially given officer’s admonition that lineup might not contain shooter]; cf. People v. Caruso (1968) 68 Cal.2d 183, 187 [two victims, officer in charge of investigation, and defendant “all testified that the other lineup participants did not physically resemble defendant” in case where “[t]hey were not his size [6’1” tall], not one had his dark complexion, and none had dark wavy hair”].)
Henderson has also made no showing that the inclusion of his photo in the first lineup viewed by Medina unfairly tainted her subsequent identifications of him through a process of “unconscious transference.” (See People v. Phan (1993) 14 Cal.App.4th 1453, 1461, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [“ ‘Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation’ ”].) “The fact that defendant was the only person common to both lineups did not per se violate his due process rights.” (DeSantis, supra, at p. 1224; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 788-789 [use of photos for identification before live lineup not impermissibly suggestive].)
Medina explained the videotaped lineup was “more real” to her than the first photo lineup because she could observe the participants as they moved and spoke. (See Simmons v. United States, supra, 390 U.S. at p. 386, fn. 6 [an identification based on a live lineup is normally more accurate than one based on photos].) The added features of movement, sound, and clothing similar to that worn by the shooter explain why Medina was able to identify Henderson at the videotaped lineup even though she was unable to do so before, and Henderson has not shown the use of his photo in the earlier lineup had any effect on Medina’s identification. (Cf. Foster v. California (1969) 394 U.S. 440, 441-443 [witness’s later identification of defendant was tainted by earlier identification procedures that included a three-person lineup where defendant was at least six inches taller than the “fillers” and the only one wearing a jacket similar to that worn by the robber and a separate one-on-one confrontation procedure].)
Since we have concluded the lineup procedures in this case were not unduly suggestive, “we need not go on... to determine whether the identification itself was nevertheless reliable under the totality of the circumstances.” (People v. Johnson (1992) 3 Cal.4th 1183, 1218; see also People v. Ochoa, supra, 19 Cal.4th at p. 412.) Defense counsel had an opportunity to cross-examine Medina regarding the accuracy of her identification, to present expert testimony on the vagaries of eyewitness identification and visual memory, and to argue that Medina’s identification of Henderson as the shooter was not worthy of the jury’s credence. (See Simmons v. United States, supra, 390 U.S. at p. 384 [risk of conviction based on misidentification “may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error”].) We conclude Henderson has not met his burden to prove the effect of the first photo lineup was unfair or unduly suggestive, and the trial court did not err when it denied his motion to exclude Medina’s eyewitness identification. (See People v. Cunningham (2001) 25 Cal.4th 926, 989-990; People v. Brandon, supra, 32 Cal.App.4th at p. 1052.)
B. The Cell Phone Records
Henderson next contends the trial court erred when it denied his motion in limine to exclude the prosecution’s records of calls received on Gutierrez’s cell phone from phone numbers linked to Henderson, on the theory that the police failed to obtain and preserve, in violation of California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51, additional cell phone records that would have been exculpatory.
“Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ [Citations.] To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ [Citation.] In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ ” (People v. Roybal (1998) 19 Cal.4th 481, 509-510, quoting Trombetta and Arizona.) “[A]s a general matter, due process does not require the police to collect particular items of evidence.” (People v. Frye (1998) 18 Cal.4th 894, 943; see also People v. Hogan (1982) 31 Cal.3d 815, 851 [“police cannot be expected to ‘gather up everything which might eventually prove useful to the defense’ ”].) If a defendant shows significant exculpatory evidence was lost, or establishes bad faith in the loss of potentially useful evidence, the trial court has discretion to impose appropriate sanctions. (See People v. Medina (1990) 51 Cal.3d 870, 893-894.)
“On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling.” (People v. Roybal, supra, 19 Cal.4th at p. 510.) Henderson claims that police should have obtained and preserved call records for Michael Bonner, a Suspect No. 2 (“Shawn” or “Shaun”), a second cell phone that belonged to Gutierrez and Medina, and a voicemail message allegedly left on the phone Gutierrez was using on the day he was killed. We conclude the facts developed in an extended evidentiary hearing establish that the police merely failed to collect, rather than preserve, the desired cell phone records, that the missing records did not have exculpatory value that was apparent before they were purged by the phone company, and that the police did not act in bad faith. Accordingly, the trial court’s decision to admit the records of calls received on Gutierrez’s phone is supported by substantial evidence.
1. Bonner’s Phone Records
Gutierrez received several calls on the day he was killed from a phone number registered to “Easy Smith, ” and that phone number was the last one dialed from Gutierrez’s cell phone about an hour before he was shot. Approximately a year after the shooting, the investigating officer, Lieutenant Balma, learned that the “Easy Smith” phone number was associated with Henderson’s friend Michael Bonner. The records for the “Easy Smith” phone had already been purged by the phone company.
The cell phone company purged its call records after six months.
Henderson contends that it could have been Bonner and not he who arranged to meet Gutierrez, and he was prejudiced by the inability to obtain the “Easy Smith” phone records. But the investigating officer testified that Bonner did not match Henderson’s description. He had a “completely different body build, ” and was “much bigger, much heavier than [Henderson], who is very thin.” Thus, there is no basis to conclude Bonner would have been identified as the shooter by Medina. Henderson also suggests Braud could have been the one who arranged to meet Gutierrez on the night he was killed, but Balma testified Braud was “much lighter skinned” than Henderson, and neither Braud nor Bonner had “any type of complexion problems.” Moreover, as the trial court noted, the call records for Bonner’s phone would not have shown who placed the calls, and there is no reason to conclude the records would have been exculpatory. Substantial evidence supports the trial court’s findings. Henderson failed to show the missing call records for Bonner’s phone would have been exculpatory, or that police acted in bad faith by failing to obtain and preserve them. (See People v. Frye, supra, 18 Cal.4th at p. 943 [speculative assertions that missing evidence might have been exculpatory were insufficient to establish a due process violation].)
2. Suspect Number 2’s Phone Records
A few days after Gutierrez was killed, Balma received information regarding a potential suspect named “Shaun” or “Shawn, ” who had reportedly claimed he “killed some Mexican in the Mission.” Balma prepared a search warrant for a cell phone number said to belong to “Shaun, ” but the phone company inadvertently transposed the last two digits when it retrieved the records. By the time Balma realized he had the wrong records, the phone company had purged the correct ones.
The subscriber name for the phone number that reportedly belonged to “Shaun” was Lauren Arendt, who was not able to assist police in identifying “Shaun, ” and Balma was never able to otherwise identify who “Shaun” was. In any event, the phone number alleged to be Shaun’s did not appear on the list of calls received on Gutierrez’s phone, and Balma did not consider the location where Gutierrez was killed to be in the Mission. Under the circumstances, Henderson has not shown Shaun’s cell phone records would have been exculpatory, or that police acted in bad faith by failing to notice earlier that the cell phone company provided the wrong records.
3. Call Records for Medina’s and Gutierrez’s Second Cell Phone
Based on information provided by Medina, Balma obtained call records for a cell phone with the subscriber name “Eternal Bliss” that Gutierrez used to arrange the sale of his handgun on the day he was shot. Since Medina identified the “Eternal Bliss” phone as the one Gutierrez used in the sale of the gun, Balma did not seek call records for a second phone used by Medina and Gutierrez which they had with them at the time of the murder.
Henderson argues the records from the second cell phone could have been used to impeach Medina’s statement to police that it was not functional. But Medina testified that both phones were working the day Gutierrez was killed. So, there is no apparent significance of the records for impeachment. The call records of Eternal Bliss showed that it received multiple calls from the second phone on the day of the murder, and Balma testified he believed both phones were operational on the night Gutierrez was killed. Henderson’s claim is that police should have obtained the call records for the second phone because the shooter could have used that number to contact Gutierrez. His speculation is insufficient to establish that the records would have been exculpatory, or that Balma acted in bad faith when he determined it was not necessary to obtain them.
4. Voicemail Message Allegedly Left on Gutierrez’s Eternal Bliss Cell Phone
The call records for the Eternal Bliss phone showed that a seven second call was received on the phone’s voicemail from Bonner’s phone several hours before Gutierrez was killed. Henderson claims police should have preserved any voicemail message. But Medina told police the phone’s voicemail feature was never activated, and the call records indicate that no one attempted to retrieve any voicemail messages from the Eternal Bliss phone. Inspector Balma also concluded that seven seconds would not have been enough time for a caller to listen to the phone company’s recorded greeting and leave a message. Moreover, the police inspector who examined the phone found no voicemail messages. Substantial evidence supports the trial court’s finding that it was speculative to conclude that any voicemail message was left on Gutierrez’s phone, much less that it was exculpatory, or that police efforts to retrieve such a message were in bad faith.
The trial court also noted the cell phone itself remained available for further examination.
Even if we assume for the sake of argument that police failed to properly preserve the cell phone records in question, Henderson’s argument that they would reveal exculpatory evidence is speculative at best, as are his allegations that police acted in bad faith in failing to successfully pursue and preserve them. His assertions are not sufficient to establish a due process violation. (See People v. Frye, supra, 18 Cal.4th at pp. 943-944; see also In re Michael L. (1985) 39 Cal.3d 81, 86-87 [“although the officers may have been negligent in failing to obtain [a store surveillance videotape that was inadvertently erased by the private owners], the record demonstrates that the officers did not act in bad faith or with any intent to deprive defendant of this evidence”].)
Henderson attempts to distinguish Michael L. as involving “an ab initio failure to collect evidence, versus ineffectually beginning and attempting to collect and thus to preserve evidence....” We are not persuaded. The failure of police to obtain the tape in Michael L. could also be characterized as an ineffectual attempt to collect evidence because the store owners initially refused to release it to police custody. (In re Michael L., supra, 39 Cal.3d at p. 87; cf. People v. Gonzales (1986) 179 Cal.App.3d 566, 568, 570-571 [victim gave police a drawing of the robber’s tattoo, but police failed to take it with them and preserve it].)
C. The Discovery Request
Henderson sought discovery of a police report pertaining to the killing of Mario Monge. In her statement to police, Medina told them she overheard people at Monge’s funeral say they thought Gutierrez was the intended target of Monge’s killer. Based upon her statement, Henderson argued the police report could support his defense because Gutierrez may have been killed by the same person who killed Monge.
Following an in camera review, the court concluded the report was protected from disclosure by the official information privilege in Evidence Code section 1040, subdivision (b)(2), on the basis that the need to preserve its confidentiality outweighed Henderson’s interest in disclosure. The court described Henderson’s argument that the person who killed Monge might also have killed Gutierrez as “the essence of speculation, ” as no charges or arrests had been made in the Monge case. The court concluded the speculative nature of Henderson’s use of the evidence did not outweigh the “substantial governmental interest in maintaining the confidentiality of the reports of this unsolved homicide, ” and denied discovery of the police report.
The court summarized the similarities between the homicides of Gutierrez and Monge as follows: both victims were Hispanic males, who died by gunshot wounds, and who may have been involved in some gang activity. The dissimilarities included the location and circumstances of the two shootings, and the fact that an arrest was made only in Gutierrez’s case.
In this court, Henderson sought to have the records of the in camera proceedings unsealed. We have deferred ruling on Henderson’s request pending our consideration of his appeal. Henderson asks that in our review, we pay particular attention to whether there is any mention of Adon Gonzalez, Reydolpho Castillo, or “Shawn”/“Shaun.” Our review of the sealed record discloses no factual connection between the killings of Monge and Gutierrez. The trial court did not abuse its discretion when it declined to order that the police report regarding Monge’s killing be disclosed to the defense. (See People v. Littleton (1992) 7 Cal.App.4th 906, 909-911 [trial court properly denied discovery of police reports of other crimes that were “unrelated by evidence”]; see also People v. Hall (1986) 41 Cal.3d 826, 833 [“evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime].) Henderson’s motion in this court to unseal the transcript of the in camera proceedings is denied.
Gutierrez’s sisters reportedly told police that Gonzalez and Castillo were enemies of Gutierrez who had previously tried to kill him. The police investigation of “Shawn”/“Shaun” as Suspect Number 2 is described in section B.2, ante.
Henderson seeks to distinguish Littleton by arguing that Monge’s and Gutierrez’s deaths were related because according to Medina, Guttierez “apparently had been the target of the earlier murder.” But Medina discounted rumors to that effect in her statement to police, and such a theory finds no support in our review of the sealed record. Nor is an evidentiary connection between the two killings established by Gutierrez’s father’s statement to police that someone threw an incendiary device at a Camero Z-28 that belonged to Gutierrez’s sister a few days after Gutierrez had been driving it.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.