Opinion
B294713
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVON PEARSON, Defendant and Appellant.
Tracy Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No.PA086940) APPEAL from a judgment of the Superior Court of Los Angeles County, Hilleri G. Merritt, Judge. Affirmed as modified. Tracy Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
The murder victim in this case posted some derogatory comments on Facebook about defendant Davon Pearson. Defendant responded with angry Facebook comments, including, "Don't make me pull up at your house." The following morning, defendant called the victim's girlfriend and said he was outside the victim's house with a gun. Three eyewitnesses and video evidence placed defendant's car at the scene. Cell tower evidence placed defendant's phone near the scene. Four people witnessed the shooting. Three people positively identified defendant as the shooter. Defendant was arrested the same day. A jury convicted defendant of first degree premeditated murder under Penal Code section 187,1 and found true an allegation under section 12022.53, subdivision (d) that defendant personally used a firearm in the commission of the crime, causing the victim's death.
On appeal, defendant asserts that the witness identifications were unreliable. We find that the identification procedures were not unduly suggestive, and the identifications were reliable under the totality of the circumstances. Defendant also asserts that the trial court erred by not continuing the sentencing hearing to allow his attorney to file a motion for new trial. However, the record shows that defense counsel said he did not find a basis for a motion for new trial, so defendant was not prejudiced by the court's failure to continue the hearing.
Defendant requests remand for resentencing because the court stated that it did not have discretion to strike the firearm enhancement under 12022.53, subdivision (h). Although the court erroneously stated that it did not have discretion to strike the firearm enhancement, it nonetheless made clear that it would not strike the enhancement even if it had discretion. Remand for resentencing under section 12022.53 is therefore unwarranted. Finally, defendant and the Attorney General agree that the one-year enhancement under 667.5, subdivision (b) is no longer applicable following the change to that statute, which went into effect on January 1, 2020. We concur, strike the one-year enhancement entered under that statute, and modify the sentence accordingly. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2017, the Los Angeles County District Attorney (the People) filed an amended information charging defendant with the willful, deliberate, and premeditated murder of Jason Newman. (§ 187.) The amended information further alleged that defendant personally discharged a firearm, causing the death (§ 12022.53, subd. (d)), and that defendant had served two prior prison terms (§ 667.5, subd. (b)). Defendant pled not guilty, and the following evidence was presented at the jury trial.
A. The day before the shooting
Marylyn Green testified that she and defendant had been friends since high school. Green testified that defendant's nickname was Brainy West. Green had also known Jason Newman, the victim, for about 10 years; they had a child together. Green and Newman had an on-and-off dating relationship; they were together throughout 2016. In May 2016, however, defendant told Green that Newman had been seeing someone else. Defendant also said Newman was saying negative things about Green, such as saying that he was disappointed in her.
Los Angeles Police Department (LAPD) sergeant Owen Berger, an expert for the prosecution, also testified that based on records the LAPD received from Facebook, defendant registered his Facebook account with a Gmail address that included "brainywest." The vanity name of defendant's Facebook account was "Brainy West."
Green testified that she did not mention her conversation with defendant to Newman for months. But on August 7, 2016, Green spoke with Newman about what defendant said in May. Newman told Green that defendant had lied.
Veronica Pompa testified that she had been "friends" and "more than friends" with defendant for about six years, and she was romantically involved with defendant in August 2016. Pompa testified that defendant's nickname was Brainy. Pompa also knew Newman; she and Newman had a lot of friends in common, and they were friends on Facebook.
Pompa testified that on August 7, Newman posted an "upset post" on Facebook. Newman's Facebook post, which went online at 10:00 a.m. on August 7, stated, "Brainy West is a bitter hatin bitch. And tha next time I see u, u gotta cash out your mouth. The only nigga to gossip like a hoe. And still don't get his dick wet. Typa nigga tell ya baby mama hoes told him you were disappointed in her. No game havin ass. Back channel whispering ass bitch. U gon pay. Shit cost around here. #manbitch lol."
Pompa said she was with defendant the morning of Newman's Facebook post. There were a lot of comments on Newman's post, including multiple comments from Newman. Pompa testified that she wrote one comment to Newman's post. Other comments were written by defendant from Pompa's account. One comment by defendant included defendant's phone number, and the message, "Hit my line tuff guy we ain't going to play this game!!! Don't make me pull up at your house." Pompa testified that "hit my line" means call me. Another comment stated, "This Brainy and once again hit my line you know what it is and I'm show you what it will be hit my line don't make me pull up on you!!!" Another comment from Pompa's account stated, "Why you ain't hit my line!!! You tuff on this Facebook glad you got your feeling out on Facebook know you got to see me in traffic." Newman responded to some of the comments, stating in one comment, "Fuck u Brainy! Fuck u nigga this for u."
Pompa initially testified that she did not know who wrote the additional comments from her account, and that she had "privacy issues" with her Facebook account. She later admitted that defendant "probably" wrote the comments, and that she told police that defendant wrote the comments. The prosecutor read from Pompa's preliminary hearing testimony, in which Pompa stated that she allowed defendant to post the comments from her Facebook account. LAPD detective Mark O'Donnell also testified that Pompa told him defendant wrote those comments from her cell phone.
Later the same day, August 7, defendant called Green "several times and said that he had saw some things that [Newman] had posted about him on Facebook, and that he was upset by it and wanted to know what was going on." Green had not seen the Facebook post, but defendant told her that Newman had called him a bitch, and he was angry. Defendant told Green he was unhappy with her for talking to Newman about him. Defendant asked Green for Newman's phone number, but Green refused to give it to him.
B. The shooting
Maria Ayala testified that the following morning, August 8, 2016, she was working as a caregiver at a home near the corner of Montford Street and Glenoaks Boulevard in Pacoima. At around 10:00 a.m., Ayala saw a reddish car parked on Montford, facing Glenoaks. About half an hour later, she saw the car again, parked in the same place but facing the opposite direction; she noticed there was one person inside.
Jesus Mendoza testified that he lived near the intersection of Montford and Glenoaks with his family, including his son Allen Mendoza, who also testified. On the morning of August 8, 2016, Jesus and Allen were in their driveway repairing a car. Jesus and Allen noticed a burgundy Pontiac Grand Am parked nearby. Allen noticed that the driver was not wearing a shirt, seemed "distressed," and was "sweating a little bit." Jesus testified that the car was parked, "[t]hen it left, and then it kind of made a turn and parked there again." The car left again and parked a third time; the driver was talking on a cell phone. The driver of the car got out, and he seemed to be still talking on a cell phone. Jesus and Allen both identified defendant as the driver at trial.
Some of the witnesses at trial share surnames. We refer to them by first names to avoid confusion.
Green testified that defendant drove a burgundy Pontiac Grand Am. Pompa also testified that defendant had a burgundy car, and identified it from photos at trial. Pompa said defendant had been driving the car the night before, when he left her house.
At 10:34 a.m. on August 8, defendant called Green, angry, "saying that [Newman] had been texting him from a Waco, Texas phone number, saying, 'Come to my house.'" Defendant told Green he had a burner on him, meaning that he had a gun, and he was driving around Newman's house. Criminal intelligence analyst Antoinette Nunez testified that phone records from defendant's phone showed that at 10:34 a.m., defendant made a three-minute phone call to Green using a cell tower 0.4 miles from Newman's house.
Green ended the call with defendant and called Newman at 10:39. Newman was groggy when he answered the phone, and said that Green had woken him up. Green told Newman about the call from defendant. Newman told Green that defendant was just trying to scare her, and she should stop answering his calls. Green testified, "I could hear him moving. And then I heard traffic on the outside, and I hear him say, 'Man, why are you driving around my house, my house, calling my girl, got her scared, waking me up?'" Newman sounded "a little upset," but he was not yelling. Green testified, "I didn't hear anything else after that. It was just quiet. Silence."
From their driveway, Jesus and Allen saw their neighbor, Newman, come "out of his house without a shirt on, with a cell phone in his hand." Newman was looking around. Defendant had gotten out of the car, and when he was approximately 20 to 40 feet away from Newman, Newman said loudly, "What are you doing here?" Defendant, still in the street but walking toward Newman, shot Newman with a black gun. Jesus estimated that defendant fired five to six times; Allen testified that defendant fired "seven, ten, 12 times." Newman fell to the ground, and defendant "[w]ent back to his car and took off." Jesus testified that he saw defendant's profile as the shooting was happening, and he saw defendant's face as he turned back toward his car.
On direct, Jesus said that defendant pulled the gun from his waistband before he shot Newman. On cross-examination, Jesus clarified that after defendant got out of the car and saw Newman, he went back to the car, got something from the car and put it in his waistband, then pulled out a gun and shot Newman. Allen testified that defendant got out of the car with the gun.
Daisy Palafox testified that on August 8 at about 10:40 a.m., she was in the back passenger seat of a car her mother was driving. Daisy's sister, Erika Palafox, who also testified, was in the front passenger seat. Daisy and Erika both noticed two black men arguing; one was inside a gated yard, and the other was on the sidewalk. The victim was talking on a cell phone. Daisy identified defendant in court as the shooter; Erika testified that she only saw the shooter's back and profile. Daisy saw defendant "take out a gun, and the victim was trying to - putting out his hand to stop, and I could see the suspect shoot him multiple times." Daisy and Erika both testified that they heard six gunshots. The victim fell to the ground, and defendant shot him again. Defendant then "looked to both sides . . . and then he ran."
On cross-examination, defense counsel questioned Daisy about when she was able to see the shooter's face as she was passing by. Daisy said she was able to see the shooter's face at about the same time the shots were being fired, and when he looked around.
Ayala testified that while she was in the home where she worked, she heard three to four gunshots "fast. One after the other." When she looked outside, she saw a man run to the car she had noticed earlier and drive away. She did not get a good look at the man's face or clothing, but she saw that he was holding a handgun. Ayala saw another man near the house across the street collapse onto the sidewalk.
Erika and Allen both called 911, and recordings of the two calls were played for the jury. Daisy and Erika's mother turned the car around and parked near the scene; Daisy and Erika got out of the car and approached Newman. Jesus and Allen also approached Newman, and waited nearby until paramedics and police arrived.
Green testified that after her call with Newman ended, she tried calling him back but the phone only rang and then went to voicemail. Green "started panicking," and left work to go to Newman's house. When she arrived 25 to 30 minutes later, police were there and neighbors were milling around.
Scott Luzi, a forensic pathologist for the Los Angeles County Coroner's Office, testified that Newman had been shot five times. The shot that caused Newman's death entered the upper lip; passed through the lower jaw, throat, jugular vein, and upper rib cage; and lodged in the left lung.
C. The investigation
LAPD detective Efren Gutierrez testified that he responded to the 911 calls and went to the scene of the crime. He testified about bloodstain patterns and bullet impact damage found there. Gutierrez also testified that six spent nine-millimeter bullet casings were found at the scene near a tree, and another spent nine-millimeter bullet casing was found near the middle of the street. Newman's cell phone was also collected at the scene. LAPD detective Mark O'Donnell, who was the investigating officer assigned to the murder, testified that he spoke with family members at the scene, who told him about the Facebook feud and gave him screenshots of the Facebook conversation.
Pompa testified that on the day of the shooting, August 8, she spoke with defendant. Defendant asked Pompa if he could get a ride with her to a dispensary. Pompa agreed, and after she left work at noon, she and a friend picked up defendant at his home in Tujunga. Pompa testified that defendant told her that his car had "conked out." However, Detective O'Donnell testified that Pompa told him that defendant represented to her that he did not want to drive his car, but Pompa did not know why.
LAPD detective Travis Coyle testified that detective James Fillmore informed him that defendant was a suspect. Coyle searched for a residence address for defendant and searched for associated vehicle records; he found defendant's address and records for a Pontiac registered to defendant's family member. Coyle went to defendant's address and found an "electric red, laser red" Pontiac Grand Am parked behind the apartment building. While there, Coyle also observed a silver Chevrolet Tahoe pull into the driveway of defendant's apartment building; defendant came out of the building and got into the Tahoe. Coyle followed the vehicle for a few blocks, then handed off the investigation to other officers. Police pulled over the Tahoe, and detained defendant. Detective Fillmore testified that a key that operated the maroon Pontiac Grand Am was found in defendant's possession when he was detained.
Detective Fillmore created a six-pack photo array with defendant's photo in the number two position. LAPD detective Christian Mayes interviewed Jesus and Allen on the day of the shooting. Mayes asked Jesus to identify the shooter using the six-pack. Mayes read Jesus an admonition stating that the photographs may or may not contain the person under investigation, and that the photos may not be recent. Jesus testified that he read and understood the admonition before viewing the photo six-pack. Jesus identified defendant from the six-pack. Jesus testified that he chose defendant's picture because of the nose, mouth, and chin area, and the shape of the face. Jesus said the person in the picture had shorter hair than the person who did the shooting. Mayes testified that Jesus told him at the time of the identification that Jesus chose defendant's photo because of the complexion and because his face looked the same.
Defendant stated in his opening brief that Fillmore testified that to create the six-pack, he "obtained a photo of [defendant] and then a computer randomly selected five other photos to complete the six pack." This is incorrect. Fillmore testified that he used defendant's photograph to do a "similar image search," and from the 100 or so photos that resulted from the search, Fillmore chose five to complete the six-pack.
The same day, Detective Fillmore asked Daisy to identify the shooter from the six-pack. Fillmore gave Daisy the admonition and instructions about making the identification. Daisy circled two photos in the six-pack, including defendant's. Daisy testified at trial that she picked number two, defendant, because of the "complexity [sic] of his skin, and his eyes were the perfect amount of space apart, and his lips were really big." Fillmore recalled that Daisy said she chose number two based on his "complexion, the hair and the nose." Daisy testified that she also circled number three because his face was oval.
Shortly after Daisy viewed the six-pack photos, police took her for a field show-up, which involves taking a witness to view a suspect who has been detained. Detective Fillmore gave her an admonition and instructions about how to make an identification. Daisy saw defendant handcuffed with officers around him, and she identified defendant as the shooter. Defense counsel asked, "Did the fact that he looked like one of the people in the six-pack have any influence on you saying that was the guy" who did the shooting? Daisy answered, "No." Daisy also testified that the field show-up made her more sure that defendant was the shooter because of his height and the way he stood.
Detective Mayes took Allen by car to a field show-up. Before they left the police station, Detective Fillmore read an admonition to Allen stating that the fact that the person was in custody did not indicate guilt. Mayes drove Allen to the location where defendant was handcuffed with officers near him. The prosecutor at trial asked Allen, "Was that the guy?" Allen answered, "Yeah."
An audio recording of Allen's field show-up was played for the jury. According to the transcript, Mayes asked Allen, "Do you recognize him?" Allen answered, "Yes." Mayes asked, "Is that the gentleman that you saw shooting at James [sic] on your street, or where do you recognize him from?" Allen answered, "I wanna say he was the one that was shooting at him." Mayes had defendant turn to the side, and Allen confirmed, "I recognize him because he's the one that shot James [sic]." Mayes asked, "You're sure that's him?" Allen answered, "Yeah. I'm sure."
At trial, Allen clarified that Detective Mayes asked about "James" as the victim, and "I said yes to James, but his name is Jason." In a recorded follow-up interview recorded shortly after the field show-up, Allen clarified that he meant to say that defendant shot Jason, not James.
On cross-examination, defense counsel asked Allen, "When you identified [defendant] at the field show-up, what made you pick him?" Allen responded, "Well, he was very tense, you know. He looked like someone who just shot someone. He didn't look innocent." Allen also noted, "His height was about the same," and stated that defendant "looked a little proud" in his "[b]ody language, attitude, [and] posture." Allen confirmed that officers told him that just because the person was at the field show-up did not mean that he was the suspect. On re-direct, the prosecutor asked Allen if he identified defendant at the field show-up solely on the fact that he looked "tense" or "proud." Allen responded, "Not for a second. It looked like the person. It looked like the person. I just don't want to be held like 100 percent, are you sure, 100 percent? More like 99.9 percent sure it was him."
Fernando Moreno testified that he lived near the crime scene, and had several surveillance cameras operating on August 8, 2016. Moreno provided video from August 8 to LAPD detectives. Moreno's surveillance videos showed a maroon Grand Am driving west on Montford at 10:26:16. The videos showed the car make a U-turn and drive past again, traveling east, less than a minute later. The car drove west again at 10:34, and again at 10:42.
The day after the shooting, August 9, 2016, Pompa had a Facebook conversation with Natasha Dunbar, her daughter's cousin. Dunbar stated, "This is so sad. smh. Why are people saying you had something to do with this? Be careful. I love you." Pompa responded, "Because dude commented from my phone," and testified that by "dude" she was referring to defendant. In another post, Pompa wrote, "If you see that shit, clear it, please. Brainy is boo." Pompa testified that "[my] boo" means "my honey."
D. Defense case
Defendant presented the testimony of witness John Moore, a private investigator. Moore testified that he filmed out of the passenger side of his car while driving 25 miles per hour past the crime scene. The video was played for the jury. The defense rested.
E. Verdict and sentence
The jury found defendant guilty of murder (§ 187, subd. (a)), and found true the allegation that the murder was committed willfully, deliberately, and with premeditation. The jury also found true the allegation that defendant personally discharged a firearm in the commission of the crime, causing great bodily injury or death to the victim. (§ 12022.53, subd. (d).) After trial, the court and prosecution agreed that the record indicated that defendant had a single prison prior, and defendant admitted that allegation. (§ 667.5, subd. (b).)
After multiple continuances, which are discussed more fully below, the court sentenced defendant to a total of 51 years to life, as follows: a term of 25 years to life on the murder charge; a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); and a consecutive term of one year for the prison prior under section 667.5, subdivision (b). The court gave defendant 842 days of custody credit, and imposed various fines and fees. Defendant timely appealed.
DISCUSSION
Defendant asserts on appeal that the trial court committed four errors: First, in admitting evidence of the witness identifications of him; second, in denying counsel's request for additional time to file a new trial motion; third, in sentencing defendant under the firearm enhancement in section 12202.53, subdivision (d); and fourth, in sentencing defendant under the prison prior enhancement under section 667.5, subdivision (b). We address each of these issues and affirm the judgment. However, we agree with the parties that due to recent changes to section 667.5, defendant's prison prior no longer qualifies for an enhancement. We modify the sentence accordingly.
A. Identification
Defendant argues that the six-pack photo array was "impermissibly suggestive," the field show-up involving Daisy was unduly suggestive, the trial court should have excluded this evidence, and because it did not, defendant's due process rights were violated. We find no error.
1. Background
In a pretrial motion to set aside the information under section 995, defendant asserted that the six-pack was "unnecessarily suggestive" because in the people in the six-pack did not all "have the same characteristics, specifically the complexion and skin-tone," so that "only one (the Defendant) matched the dark complexion specified by the witnesses." Defendant argued that this, along with the witnesses' fleeting glimpses of the crime, rendered the People's evidence insufficient to support the charges in the information.
At a pretrial hearing, the trial court denied the motion. The court then referenced motions under Evidence Code section 402, which are not included in the record on appeal. The court stated, "I at this point have heard nothing that would indicate I'm going to exclude the photo arrays or the subsequent field I.D. or in-court I.D.'s." Defense counsel stated that Daisy's field identification was unreliable because it directly followed her viewing of the six-pack, in which she stated that two people stood out to her—defendant and another man. Defense counsel argued the field show-up was unduly suggestive, because "when you show somebody something twice and the only overlapping thing is the person that she picks, I don't know how to get any more suggestive than that." The court denied defendant's request, stating that "it goes to weight, not admissibility. I don't have anything before me that indicates that the case law states that anything was done here in a way that is so unduly suggestive that the only remedy is exclusion of the identification."
In further discussion, defense counsel stated, "I'm not talking about the photo array. It was done, she was admonished, and she couldn't pick somebody out. She picked out two." He continued, "[Y]ou can't get anymore [sic] suggestive than narrowing her two of six to one, and then have [defendant] surrounded by officers" when Daisy saw him. The court discussed the evidence and stated, "There's nothing about the field show-up and the six pack evidence that's been presented to this court that I find to be unduly suggestive. So the field show-up will be admissible."
2. Analysis
On appeal, defendant argues that the six-pack was "impermissibly suggestive" because defendant's "significantly darker skin complexion caused his photo to stand out." He also asserts that the "danger from the suggestive six-pack was exacerbated in Daisy's case when the police followed up with a one person field show-up." Defendant asserts that as a result of these issues the identifications were not reliable, and his due process rights were violated when the court allowed this evidence before the jury. The Attorney General contends that the procedures used were not unduly suggestive, and the identifications were reliable under the totality of the circumstances.
"In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) "The defendant bears the burden of demonstrating the existence of an unreliable identification procedure." (Ibid.) Where, as here, there is no dispute regarding the historical facts, "we independently review the trial court's ruling that the identification was admissible." (People v. Sanchez (2019) 7 Cal.5th 14, 36.) "A due process violation occurs only if the identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" (People v. Cook (2007) 40 Cal.4th 1334, 1355 (Cook).)
Defendant argues that the six-pack used was unduly suggestive because defendant's "significantly darker skin complexion caused his photo to stand out, especially because it was already in the central #2 spot." The record does not support this contention. We have reviewed the six-pack, which shows photographs of six men of similar age, each of whom is either bald or has short hair. While defendant's photo does suggest that he has the darkest complexion of the six men pictured, the difference is minor and does not cause defendant's photo to stand out from the others.
In addition, nothing about the witnesses' descriptions suggested they would be more likely to choose a photo of a man with a dark complexion. The only witness to describe the shooter as having a dark complexion was Allen, who, according to Detective Mayes, described the shooter as having "messy hair on the top, dark complected, somewhere around 32 years of age." Erika described the shooter as having a medium complexion. Neither Daisy nor Jesus—the two witnesses who viewed the six-pack—described the shooter's complexion to police before viewing the six-pack. Moreover, Daisy was apparently not unduly influenced by defendant's photo in the six-pack. Although Daisy said she chose photo number two—defendant—in part because of his complexion, she also chose photo number three due to the shape of the person's face.
"'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. Gonzalez (2006) 38 Cal.4th 932, 943.) Nothing in the record indicates that the contents of the six-pack were so suggestive that they caused Jesus and Daisy to choose defendant. Detective Fillmore testified that it is nearly impossible to create a six-pack in which all the photos contain identical complexions, and "[t]hat's why we give the admonishment to witnesses that complexions can look different in those photographs, lighting can change. Don't pay attention to that." He added that Daisy understood that admonition.
Defendant further asserts that the field show-up following Daisy's viewing of the six-pack was also unduly suggestive. He contends that the "danger from the suggestive six pack was exacerbated in Daisy's case when the police followed up with a one person field show-up." He also argues that the field show-up with Daisy "was wholly unnecessary" because defendant had been already identified by Allen, Jesus, and Daisy's six-pack identification.
Defendant does not challenge the field show-up involving Allen, and he acknowledges that Allen's identification of defendant was not challenged at trial.
"[A]lthough a one-person showup may pose a danger of suggestiveness, such showups 'are not necessarily or inherently unfair. [Citations.] Rather, all the circumstances must be considered.'" (People v. Medina (1995) 11 Cal.4th 694, 753; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 ["[t]he "single person showup" is not inherently unfair'"].) Here, Daisy identified defendant and another photo in the six-pack, and shortly afterward attended the field show-up. At trial, defense counsel asked her, "Did the fact that he looked like one of the people in the six-pack have any influence on you saying that was the guy" who did the shooting? Daisy answered, "No." The record therefore does not support defendant's argument that the field show-up was unduly suggestive because it followed Daisy's viewing of the six-pack. "[D]efendant has the burden of showing that the identification procedure was unduly suggestive and unfair 'as a demonstrable reality, not just speculation.'" (Cook, supra, 40 Cal.4th at p. 1355.) Defendant has not met that burden here.
"Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." (People v. Alexander (2010) 49 Cal.4th 846, 902.) But even if we assumed for the sake of argument that the six-pack and Daisy's subsequent field identification were unduly suggestive, we conclude that the pretrial identification was "nevertheless reliable under the totality of the circumstances." (Cunningham, supra, 25 Cal.4th at p. 989.) In making this determination we consider "such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Ibid.)
Here, Jesus, Allen, and Daisy all testified that they got a good look at the shooter. Before the shooting, Allen observed defendant in his car closely enough to note that defendant was sweating. Jesus testified that he saw defendant's profile during the shooting, and he saw defendant's face when he turned back toward his car. And Daisy testified that she got a clear look at defendant during the shooting and when he looked around afterward. All three witnesses were paying attention to the events as they occurred, each noting that Newman was holding his phone, Newman and defendant were speaking or arguing, defendant fired multiple shots, and defendant turned and left the scene.
Defendant admits there is no information in the record to determine the accuracy of the witnesses' descriptions of defendant. Allen described the shooter's hair as "messy" and he estimated the shooter's height and weight, but there is no information in the record regarding the actual state of defendant's hair or defendant's actual height and weight. The record does not include any descriptions of the shooter by Jesus or Daisy.
In addition, each of the witness's identification was fairly certain. At his field show-up, Detective Mayes asked Allen, "You're sure that's him?" Allen answered, "Yeah. I'm sure." Although Daisy initially chose two pictures in the six-pack, she testified that the field show-up made her more sure that defendant was the shooter because of his height and the way he stood. Detective Mayes also testified that while viewing the six-pack, Jesus "identified the person depicted as number 2 very quickly, within 10 seconds of looking at the photos." Finally, each of the identifications occurred within hours of the shooting, so there was not a significant lapse of time between the event and the identification. All of these factors establish that the identifications were reliable under the totality of the circumstances.
Thus, the identification procedures were not unduly suggestive, and even if they were, the identifications themselves were reliable under the totality of the circumstances. We therefore find no error in the court's admission of this evidence.
B. Motion for new trial
Defendant asserts that he is entitled to a remand to allow for the preparation of a motion for new trial, because the court erred in denying defense counsel's request for additional time to prepare a motion before sentencing. We find no error.
1. Background
The jury returned the verdict on March 15, 2018. The court set a sentencing hearing date for May 1, 2018.
Defendant's privately retained trial attorney did not appear at the May 1 hearing. Defendant told the court that he no longer wanted his attorney to represent him, and instead he wanted an attorney from the public defender's office, which had initially represented him. Section 1191 generally requires the trial court to sentence a defendant within 20 judicial days of the verdict. Defendant waived his rights to timely sentencing under section 1191 and agreed to a continuance. The court continued the hearing to May 16.
On May 16, the public defender's office told the court it would not take defendant's case again. The court appointed bar panel counsel, and set a hearing date for June 6. Defendant again waived his rights to timely sentencing and agreed to the continuance. On June 6, bar panel attorney Jonathan Mandel appeared and requested the trial transcripts. The court continued the matter to July 18; defendant waived his rights to timely sentencing and agreed to the continuance. On July 18, stand-in counsel appeared for defendant. The court noted that defense counsel was "working on filing a motion for new trial" and had asked for additional time. The court continued the matter to August 31; defendant waived his right to timely sentencing and agreed to the continuance.
On August 31, the court said to defendant, "So your attorney is still working on your motion for a new trial." The court noted that defense counsel asked for the hearing to be continued to October 4. Defendant waived his right to timely sentencing and agreed to the continuance.
On October 4, Mandel requested more time for a new trial motion, stating, "I need to do a written motion, so I'd like as much time as the court can give me" to allow time for preparation and notice requirements. The court set a hearing for November 5, and again defendant waived his right to timely sentencing and agreed to the continuance. Defendant did not appear for the November 5 hearing, so the hearing was moved to November 6.
On November 6, substitute counsel appeared for the People and the defense. The court told defendant that at the hearing the previous day, Mandel said that "December 5th was a go date," and asked defendant if he agreed to waive his right to timely sentencing. Defendant replied, "No, I'm not waiting no more." The court asked the clerk to see if Mandel could appear on November 8, and remarked about defendant, "I can't make him waive time." After a break, the court said to defendant, "We spoke with your attorney, and the 20th calendar day from yesterday is November 26th . . . . So Mr. Mandel has asked, and Mr. Richman [trial counsel for the People] has agreed, to trail this to November 26." Defendant responded, "Thank you."
At the hearing on November 26, the court asked Mandel, "[D]o you waive arraignment for judgment, time for sentence, no legal cause?" Mandel stated, "Yes, your honor. I would like a moment to give an explanation why we're not ready, but it is waived." Mandel explained that he planned to "give a written report to the court," but "I had a bit of a problem because my client refused to waive time," and because Mandel had been in trial for five weeks, "the refusal to waive time has put me in a situation where I have to give an oral statement." Mandel said, "So the oral statement is this: I've reviewed the case. I've reviewed the documentation and the transcripts, as well as the discovery; and there are several things that should have been done, but . . . may not have made a difference in the outcome." He continued, "One was the statement by [victim] Mr. Newman earlier, a Facebook post about an 'ese' who threatened him with a gun. I know the court made a ruling, but I thought that was worth following up. [¶] No G.S.R. [gunshot residue] evidence, as I recall, was presented, even though he was not found with G.S.R. when tested within two to three hours of the shooting. No I.D. expert was appointed to explore. [¶] I'm not saying this would have been dispositive, but simply to protect [defendant's] position, they should have had a G.S.R. expert to testify and/or present. They should have had an I.D. expert. Someone should have contacted D.M.V to determine how many burgundy cars of that type were produced. That seemed to be an issue, obviously. [¶] A cell tower expert should have been consulted with, simply to see whether the information on cell tower which was brought in by the prosecution was, in fact, valid, as well as the text messages and social media should have been explored. [¶] Those are the areas I think are important. Would they have made a difference in outcome? I don't know. But as any defense attorney handling a case of this magnitude, that should have been done." Mandel noted that he had discussed these issues with defendant, and added, "Because it was not dispositive, I don't believe I could say with certainty it could have constituted a motion for new trial. That's why I bring it to the court's attention orally, but I'm not preparing a motion for new trial."
The court responded, "I appreciate the information. Having sat through the trial, I agree with your assessment that while these things could have been done, would they have changed the outcome? I think, under a Strickland[] analysis, it's unlikely." The court discussed the evidence, including video of the car, Green's testimony, and "certainly, [the] things that came into evidence that your client had said." The court noted that the jury found the evidence compelling, and said, "[T]hose concerns you had, while they may be concerns, I agree with your analysis, Mr. Mandel, that it is unlikely it would have changed the outcome." The court then moved on to hearing the victim impact statements.
Presumably, the court was referencing Strickland v. Washington (1984) 466 U.S. 668.
After the court announced the sentence of 51 years to life, defendant indicated he wanted to address the court. He noted that although Mandel had had the case for nine months, "he says he wasn't prepared to file a motion for retrial." The court stated that Mandel had offered "[e]xcellent representation," and that in appointing him, the court "did not direct him to do anything as far as whether he had to file motions." The court continued, "Mr. Mandel made a pretty thorough record as to why, after assessing this case and going through all of the volumes of the transcripts, he determined that a motion for new trial did not lie." Defendant questioned why nine months was not enough time to file a motion, and the court stated, "Mr. Mandel did not indicate he did not have the time. He indicated that this last few weeks, he didn't file, essentially, a motion to the court as to things that, while he thought should have been done, would not of themselves rise to the level of a new trial motion, but what I heard from him was he did take the time." The court noted that Mandel reviewed the record and made a determination, and his statement was not about "a lack of time for him. It was that he simply did not believe, in his professional estimation, that there was grounds for a new trial." The court asked Mandel if he had anything to add, and Mandel responded, "No, Your Honor. You did a better job than I can." Defendant said, "I understand what you're saying. He didn't believe I had grounds for a retrial, so he didn't --" The court said, "Correct."
2. Analysis
Defendant asserts on appeal that the court erred because it "did not ask any questions about why [defendant] would not waive time" at the November 6 hearing, and "made no attempt to clarify whether [defendant] was, in fact, agreeing to the December 5 date." Defendant asserts that his refusal of a continuance "indicate[d] problems between [defendant] and appointed counsel," and therefore the court should have held a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118. --------
The court was not required to question defendant about his motives in refusing another continuance. There is no suggestion in the record that a Marsden inquiry was warranted. "[T]he trial court's duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides '"at least some clear indication"' that the defendant wishes to substitute counsel." (People v. Martinez (2009) 47 Cal.4th 399, 418.) Where a defendant has "made no assertion whatsoever regarding dissatisfaction with counsel, the trial court's duty under Marsden [is] not triggered." (Ibid.) Defendant's statement that he did not want to wait any longer was not a clear indication that he wanted to substitute counsel. Defendant had substituted counsel twice in the case, from a public defender, to retained counsel before trial, to Mandel after trial. Defendant was aware of how to ask the court for new counsel, and he did not do so here.
Defendant also contends that "the trial court erred when it failed to grant counsel's request for a continuance despite [defendant's] desire not to further delay his sentencing." Defendant argues, and the Attorney General agrees, that counsel may waive a client's rights to timely sentencing under section 1191. Indeed, when it comes to "Penal Code section 1191's mandate [that] a defendant be sentenced within [20] days," "counsel controls the case to the extent of moving for continuances beyond the statutory period, even over his client's objection." (People v. Jackson (1982) 129 Cal.App.3d 953, 956.) Thus, the court's comment, "I can't make [defendant] waive time," was incorrect.
The Attorney General asserts that nevertheless, there was no prejudice. "In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction." (People v. Samayoa (1997) 15 Cal.4th 795, 840.) Defendant argues that he was "deprived of the opportunity to have counsel research, prepare, and file a written motion for a new trial."
The record does not support defendant's contention. Although Mandel stated that he planned to "give a written report to the court," he never stated that did not have time to review the record or that he intended to file a motion but did not have time. Instead, Mandel said, "I've reviewed the case. I've reviewed the documentation and the transcripts, as well as the discovery." He stated that although defendant's trial counsel could have addressed certain issues, "I don't believe I could say with certainty it could have constituted a motion for new trial. That's why I bring it to the court's attention orally, but I'm not preparing a motion for new trial." Later, the court explained to defendant that Mandel did not fail to make a motion due to lack of time, instead "he simply did not believe, in his professional estimation, that there was grounds for a new trial." When the court asked Mandel if he had anything to add, Mandel agreed with the court's statement. Thus, the record does not support defendant's assertion that defendant was deprived of the opportunity to have counsel review the record and prepare a motion for new trial due to the lack of another continuance.
C. Firearm sentencing enhancement under section 12022.53
Defendant asserts that the trial court erred in stating that it had no discretion to strike or reduce the firearm enhancement under section 12022.53, subdivision (d). The court did erroneously state that it did not have discretion to strike the enhancement. However, the court made clear that it would not strike the enhancement even if it had discretion to do so. We therefore find no basis for remand.
1. Background
The court sentenced defendant to a term of 25 years to life on the murder charge, and added a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court stated as it imposed the enhancement, "I do not believe that this particular enhancement is subject to the discretion of the court. I know some gun laws or gun enhancements have become so but, on the off chance I'm wrong or in the future that changes, let me be clear that even if I had the discretion to strike this, I would not." The court noted that defendant had lured Newman out of his house by calling Green, and shot Newman while he was unarmed. The court reiterated, "So even if I had the discretion, which I do not believe I do, but even if I did, I would not exercise it."
2. Analysis
Section 12022.53, subdivision (h) was amended, effective January 1, 2018, to give the trial court discretion to strike or dismiss a section 12022.53 enhancement. Thus, at the time of the November 26, 2018 sentencing, the trial court had discretion to strike or dismiss the section 12022.53, subdivision (d) firearm enhancement. The court's statement that it did not have discretion was therefore erroneous.
The error was harmless, however, because the court made clear that it would not strike the enhancement even if it had discretion to do so. "[I]n assessing whether to remand a case for resentencing" under section 12022.53, subdivision (h), remand is not warranted where the "trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; see also People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [where the court has not exercised its discretion in sentencing, remand is not required if "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion'"].)
Defendant asserts that this case is similar to People v. Billingsley (2018) 22 Cal.App.5th 1076, 1082, in which the Court of Appeal remanded the case stating, "The trial court here should have the opportunity under the new law to strike the 20-year enhancement under section 12022.53, subdivision (c), or the 10-year enhancement under section 12022.53, subdivision (b), or both." However, there the court found that "the record does not 'clearly indicate' the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion." (Id. at p. 1081.) Here by contrast, the court clearly stated that it would not exercise its discretion to strike the firearm enhancement. Remand to allow the court to exercise its discretion is therefore not warranted.
D. Prison prior sentencing enhancement under section 667.5
A recent change to section 667.5, subdivision (b), effective January 1, 2020, limits one-year prior prison term enhancements to cases in which the prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." The change in section 667.5, subdivision (b) is retroactive to cases that are not yet final. (People v. Winn (2020) 44 Cal.App.5th 859, 872 (Winn).)
Defendant's prison prior was for drug possession convictions under Health and Safety Code sections 11350 and 11370.1, subdivision (a). Defendant therefore asserts that the one-year enhancement the court imposed should be stricken under the revised section 667.5, subdivision (b). The Attorney General agrees.
Because defendant's prior prison term was not served for a sexually violent offense, his section 667.5, subdivision (b) enhancement is unauthorized under the amended statute. We therefore strike the enhancement under section 667.5, subdivision (b), and modify the judgment accordingly. (See Winn, supra, 44 Cal.App.5th at pp. 872-873 [where the trial court imposed the maximum sentence, the matter need not be remanded for resentencing after striking a section 667.5, subd. (b) enhancement].)
DISPOSITION
The one-year prison term imposed under Penal Code section 667.5, subdivision (b) is stricken. Upon issuance of the remittitur, the trial court shall correct the abstract of judgment to reflect this modification and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.