Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA028972 Charles A. Chung, Judge.
Kathleen Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Jack Edward Roberts was charged with two sets of crimes occurring within a few hours between late night May 17, 2004, and the early morning hours of the next day. The first comprised of a variety of crimes against Mauricio Chicas, including kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), second degree robbery (§ 211), and assault with a firearm (§ 245, subd. (a)(2)). The second set of offenses was committed against Pierce Gutierrez and comprised counts 5 and 6—second degree robbery and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). In addition, it was alleged that defendant suffered a prior serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(d); 1170.12, subds. (a)-(d)), which also constituted a serious felony within the meaning of section 667, subdivision (a)(1), and resulted in serving a prior prison term within the meaning of section 667.5, subdivision (a)(2). The jury only convicted defendant of the two offenses against Gutierrez, specially finding true the special allegation that a principle was armed with a handgun in committing the robbery. Having waived his constitutional trial rights, defendant admitted the recidivist allegations.
The amended information mistakenly identified the victim as Mauricia Cachas.
All further statutory citations are to the Penal Code unless indicated otherwise.
The jury found defendant not guilty of the kidnapping and robbery of Chicas; the other counts were either dismissed on the prosecutor’s motion before submission to the jury or dismissed on the prosecution motion after a mistrial was declared after jury deadlock.
The trial court sentenced defendant to 13 years in prison for the robbery, consisting of the three-year midterm sentence, doubled as a “second strike, ” plus five years for the section 667 recidivist enhancement, one year for the gun use enhancement and another year for the section 667.5 prior prison term. An additional consecutive term of one year four months was imposed for the firearm offense (one-third the midterm, doubled under the three strikes law).
On appeal, defendant contends the denial of his motion to suppress eyewitness identification testimony violated his federal constitutional right to due process because the pretrial identification procedure—a field show-up—was unreliable and unduly suggestive. With regard to his sentence, defendant contends the trial court abused its discretion in denying his motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).
The trial court granted defendant’s unopposed application for relief from failure to file a timely appeal.
We affirm.
STATEMENT OF FACTS
On May 17, 2004, at approximately 10:00 p.m., Chicas was delivering pizzas for a Pizza Hut restaurant on East Palmdale Boulevard in Palmdale. Chicas used his own car, a 2002 white Dodge Stratus. His delivery was interrupted when a woman (later identified as Virginia Parks) approached his car and asked for money. When Chicas refused, defendant appeared on the passenger side of the Stratus and entered the car, holding a gun. The woman got into the back, behind Chicas. Defendant pointed the gun at Chicas and ordered him to drive to a nearby alley. When Chicas parked in the alley as directed, defendant struck him with the gun. Two males approached the Stratus from a blue Dodge Caravan minivan and dragged Chicas out of his car, while defendant looked for money in the car.
Chicas eventually managed to escape, but his money, cell phone, and pizzas were taken. He ran to the Pizza Hut, which was only a block away. The manager opened the door for him and called the police and an ambulance, which took Chicas to the hospital for treatment. After Chicas returned home, sheriff’s deputies drove him to the location where they had detained two males and a female. Chicas recognized defendant as the gunman. He had not looked at defendant’s face when the gunman entered the car and put the gun to his head. Instead, Chicas kept his head still and looked forward, as ordered. However, when the two males opened the door, the car’s dome light came on and illuminated defendant. Chicas also recognized the female as defendant’s accomplice, but he did not recognize the other male. After that, the deputies drove Chicas to a nearby location, where a blue minivan was parked. Chicas recognized it as the vehicle used in the incident.
Between midnight and 12:30 a.m., Pierce Gutierrez was driving his Nissan Sentra on Palmdale Boulevard. The car’s stereo system had a special red amplifier manufactured in Germany. There were two Daio subwoofers in the back. He had approximately 60 CD’s in a case. He had taken some crystal methamphetamine that night. Gutierrez stopped to pick up a female pedestrian, Virginia Parks, and offered to pay her for sex. They agreed on $60 for the sex act, and he drove to an automated teller machine on Palmdale Boulevard to get the cash, while Parks remained in the car. She had him drive to a nearby location at Avenue Q.
At her direction, he parked under a lighted awning in a gated apartment complex. As he prepared to engage in the sex act, defendant appeared at the passenger side window holding a gun and ordered him out of the car. Defendant pulled Gutierrez out of the car and ordered him to lie prone on the ground. Defendant put his foot on the back of Gutierrez’s head, placed the barrel of the handgun against his head, and threatened to shoot if he moved. Parks was still present and Gutierrez heard two men talking. When the robbers opened the trunk, one of them yelled, “Jackpot.” When defendant asked the victim why he should let him live, Gutierrez pointed to a photograph on the dashboard and said, “that’s my son.... Take whatever you want but let me go home and see him.” When the robbers finished unloading Gutierrez’s property into their minivan, defendant ordered him to “count to 100 and don’t look up” or he would be shot. Gutierrez saw Parks and two of the men running to the minivan, before defendant and the others drove away. They had taken approximately $66 in cash from Gutierrez’s wallet, along with his shoes, the stereo subwoofer and amplifier, his CD’s, and a bottle of degreaser for the car engine.
In the meantime, Deputy William Velek testified that he and his partner were on patrol at 12:30 a.m. in Palmdale. Driving southbound on Larkin Street, Deputy Velek saw a blue minivan enter a driveway in an erratic manner. The deputies stopped the vehicle to investigate. There were three persons inside. Defendant, who was the driver, exited immediately. The front passenger, Ruben Matute, ducked down out of view. Parks was seated in the back. When Deputy Velek opened the door for Parks, he saw the butt of a revolver sticking out of the front passenger seat. It was loaded. The deputy heard a crime broadcast concerning stolen electronics equipment. A search of the minivan uncovered speakers, an amplifier, and degreaser, consistent with the property described in the broadcast.
Gutierrez found his car keys at the robbery scene and drove away in search of a police officer. Upon seeing a patrol car, he signaled with his headlights and honked his horn. After Gutierrez reported the incident, the officer told him to leave his car and accompany the officer because the police “have the van you described and everything.” The officer drove Gutierrez to a location where he saw a blue minivan resembling the one he saw during the incident. The officer showed him three suspects, two men and a woman. Defendant did not want to get out of the patrol car, so the officer walked Gutierrez to the car and shined a light on defendant. Gutierrez recognized him. The officers returned his shoes, CD’s, degreaser, and amplifier. The subwoofers were never recovered.
Defense
Detective David Moore interviewed Gutierrez on May 20, 2004. At that time Gutierrez said he would provide the detective with a receipt for the ATM withdrawal in order to prove his entitlement to the cash recovered, but he never did.
Defendant admitted a 1998 conviction for assault with a deadly weapon. He testified that he was at his Palmdale apartment in the early evening of May 17, 2004, with family and friends at a baby shower for his pregnant girlfriend. He owned a blue minivan. Parks and Matute were his friends. She was a prostitute; Matute was her boyfriend. Defendant was familiar with Chicas prior to the incident because he appeared to be one of Parks’s regular customers, as was Guttierez.
The baby shower ended at 9:30 p.m. Defendant did not leave the apartment until midnight. Matute had borrowed defendant’s Caravan earlier that evening at approximately 8:15 p.m. and returned an hour later. Matute returned at 11:45 p.m. and asked defendant to pick up Parks. Matute appeared too intoxicated to drive. Defendant drove the minivan. When he and Matute arrived at the location on Avenue Q, defendant heard a male voice yelling obscenities at a woman. Matute left the minivan and walked in the direction of the argument. He was not carrying a firearm. The argument continued with Matute joining in. Defendant eventually approached and walked Parks back to the Caravan and sat inside with her. Some minutes later, Matute returned and they began to drive home. Matute did not bring any items of property with him. As he pulled into the narrow driveway of Parks’s residence, the police stopped the minivan.
The police searched the vehicle over his objection and found the handgun, which defendant said was not his; Matute admitted ownership of the weapon. Defendant was placed in the patrol car. He refused to participate in the field show-up and pulled his jacket over his head, despite being handcuffed. Defendant fell asleep in the car because he suffered from narcolepsy. According to defendant, the CD case Guitierrez identified as his was, in fact, defendant’s, as were the amplifier, speakers, and degreaser.
Veronica Allen corroborated that defendant attended a baby shower at his apartment on May 17. The party ended at 7:00 or 8:00 p.m., but she stayed until 10:00 p.m. because she was a friend and neighbor of defendant’s girlfriend.
DISCUSSION
Suppression Motion
Defendant contends his pretrial identification at the field show-up was conducted in such an unduly suggestive manner as to render it inherently unreliable, and to require its suppression under federal due process standards. As we explain, defendant fails to establish that the pretrial procedure was impermissibly suggestive. Nor does he demonstrate that the identification was unreliable under the totality of the circumstances.
Defendant filed a pretrial motion to suppress the eyewitness identifications made by Chicas and Gutierrez, arguing primarily that the field show-up procedure was inherently and unduly suggestive because neither witness had a good view of the perpetrator during the course of the robberies and (at least with regard to the Gutierrez identification) the witness viewed defendant alone and handcuffed in a police patrol car shortly after the robbery incident. The parties agreed that the trial court’s determination would be based on its evaluation of the preliminary hearing testimony. The court denied the motion, finding the defense failed to satisfy its burden of showing the identification procedure was unduly suggestive.
a. The Proceedings Below
At the preliminary hearing on September 15, 2004, Chicas made a courtroom identification of defendant as the robber who struck him with the gun. He also identified Parks as defendant’s female accomplice. Although Chicas did not look at defendant’s face while defendant held a gun to his head and ordered him to drive, Chicas looked at him when defendant got out of the car.
With regard to the Gutierrez incident, Deputy Ryan Golphenee testified that, when interviewed at approximately 12:35 a.m., Gutierrez said he saw the male and female robbers as they were taking Gutierrez’s property from his car. He described the robbers’ vehicle as a “light-colored, silver, possibly blue, Dodge Caravan.” Gutierrez was taken to a field show-up at the location where other deputies had stopped defendant and the others in the Caravan. The show-up consisted of defendant, Parks, and Matute, each of whom had been detained in separate vehicles. The latter two were individually escorted out of the cars and stood approximately 20 feet from the patrol car where Gutierrez sat and viewed him in the car’s headlights. Because defendant refused to leave the patrol car, Gutierrez was accompanied to that vehicle, “looked into the windows and identified him.” Gutierrez also identified the CD case, stereo amplifier, and degreaser as the property taken from his car. According to Deputy Velek, who took part in the traffic stop of defendant’s minivan, defendant was the driver, Matute was the front passenger, and Parks was in the back seat. Regarding Gutierrez’s identification, the court noted that the victim testified that, despite being ordered to lie on the ground, he saw defendant loading the property from his car into defendant’s minivan. At the time of the show-up, the witnesses had a clear view of the suspects. Further, Gutierrez identified defendant and Parks, as well as the Caravan and the stolen property.
Accordingly, the trial court found the show-up identifications were not unduly suggestive under constitutional due process standards. As to the decision to conduct a field show-up and presenting the suspects one at a time, rather than waiting to arrange a multi-person lineup at the station, the court noted that the procedure used made sense in light of the legitimate law enforcement aims of timely apprehending dangerous suspects and exonerating the innocent. If defendant’s behavior in refusing to leave the car or trying to hide his face betrayed a consciousness of guilt, that consequence was not attributable to police conduct. The court independently assessed the reliability of the identifications under a “totality of the circumstances” analysis and found “a level of reliability that passes constitutional scrutiny.”
b. Analysis
“The constitutionality of an identification procedure presents a mixed question of law and fact. (Sumner v. Mata (1982) 455 U.S. 591, 597.)” (People v. Kennedy (2005) 36 Cal.4th 595, 608.) “Accordingly, and consistent with ‘this court’s usual practice for review of mixed question determinations affecting constitutional rights’ [citation], we conclude that the standard of independent review applies to a trial court’s ruling that a pretrial identification procedure was not unduly suggestive.” (People v. Kennedy, supra, at p. 609.) A defendant claiming an unnecessarily suggestive pretrial identification bears the burden of showing it gave rise to “a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384; In re Richard W. (1979) 91 Cal.App.3d 960, 970.)
As the federal Supreme Court has explained, despite the dangers of potential suggestiveness inherent in “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, ” the process can be compatible with due process of law, “depend[ing] on the totality of the circumstances surrounding it.” (Stovall v. Denno (1967) 388 U.S. 293, 302; Neil v. Biggers (1972) 409 U.S. 188, 199 [the due process issue is whether the identification was reliable even though the identification procedure was suggestive].) “‘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, quoting People v. Yeoman (2003) 31 Cal.4th 93, 125.) Thus, in Manson v. Brathwaite (1977) 432 U.S. 98, the high court concluded “that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered... include the opportunity of the witness to view the criminal at the time of the crime, the witness’ 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (Id. at p. 114.)
California courts have consistently applied those standards to uphold in-field identifications of a single suspect. (See, e.g., People v. Anthony (1970) 7 Cal.App.3d 751, 764-765.) “Appellant overlooks the fact that the law favors field identification measures when in close proximity in time and place to the scene of the crime....” (In re Richard W., supra, 91 Cal.App.3d at p. 970.) The suggestiveness inherent in single-suspect field show-ups “is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.” (People v. Anthony, supra, at pp. 764-765.)
Here, the trial court’s factual findings that both witnesses had an adequate opportunity to view defendant during the robberies finds substantial support in the record, as do its findings that the field show-up was conducted within a relatively short time of the incidents and that the procedure gave them the opportunity to see defendant clearly during the identification process. The record indicates that neither witness had any hesitation in making the field identification. Moreover, the surrounding circumstances of Gutierrez’s identification provide strong indicia of reliability. Within hours of the robbery, defendant was found in the company of Parks and Matute in a vehicle matching Gutierrez’s description and subsequently identified by him. When initially pulled over, the police found not only a partially concealed handgun within defendant’s reach, but Gutierrez identified stereo equipment matching his prior description of the stolen property. Finally, as the court reasonably found, to the extent defendant’s own refusal to take part in the show-up by remaining in the patrol car and possibly by trying to hide his face betrayed a consciousness of guilt, that cannot be attributed to any action by the police.
The alleged problems with Chicas’s identification are not determinative, given that the jury apparently did not find Chicas a credible witness and defendant was not found guilty on any of the counts concerning that victim.
In sum, apart from the fact that the identification involved a single-person show-up, there is nothing in the record demonstrating the identification procedure was unnecessarily or unduly suggestive. (See Stovall v. Denno, supra, 388 U.S. at p. 302; People v. Alexander, supra, 49 Cal.4th at p. 902.) The procedure used in this matter cannot be meaningfully distinguished from those upheld in In re Richard W., supra, 91 Cal.App.3d at page 969, in which the defendant was identified while he was sitting in the back of a patrol car shortly after a burglary, and People v. Craig (1978) 86 Cal.App.3d 905, 914, in which the witness was taken to a patrol car that was surrounded by police officers and contained only the defendants, and the victim had seen the escape vehicle abandoned nearby.
Romero Motion
Defendant argues the trial court abused its discretion by denying his Romero motion to strike his prior conviction of assault with a firearm (§ 245, subd. (a)(2)), based on an apparent misunderstanding as to the existence of another prior felony conviction. Although our review of the record reveals the court was mistaken as to the existence of a second prior felony conviction, we hold that misunderstanding did not prejudice defendant, as explained below.
Under section 1385, the trial court has discretion to dismiss a prior felony conviction allegation in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) In order to do so, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Here, defendant had suffered one prior felony conviction, which was the “strike” he admitted for purposes of his recidivist enhancements—the 1998 assault with a firearm conviction when defendant was 18 years old. Defendant was sentenced to three years in state prison for that offense and was returned to prison for a parole violation in 2002. The probation officer’s report also notes a 1997 misdemeanor weapons offense for which defendant received two years’ summary probation and 30 days in local custody. In his pretrial Romero motion, the defense argued the prior conviction should be struck because it was “remote” in time from his next conviction, the instant offenses in 2008. The trial court denied the Romero motion, finding it likely that defendant was released in approximately 2000 and “picked up” for a conviction under Health and Safety Code section 11351.5 in 2004, “and then he picked up his current case, and so he’s not been free of criminal conduct for any substantial period of time starting from his strike.” Even though the strike was “relatively old, ” the court explained, defendant was “not free of criminal conduct from that time.” Under “the totality of the circumstances, looking at [defendant’s] criminal history and the current conduct, that under Williams he does fall within the spirit[] of the Three-Strikes law.”
The Romero motion was renewed without additional argument at the time of sentencing. In denying the motion, the trial court explained that defendant suffered the strike in 1998, “had a continued criminal history with another conviction in ’04 and then this current case. And this current case was very serious.”
As the parties agree, however, there is nothing in the record to indicate defendant suffered a prior Health and Safety Code conviction in 2004 or indeed any other felony conviction other than the instant offenses. Nevertheless, we find the trial court’s misunderstanding provides no basis for reconsideration of the issue. In rejecting defendant’s remoteness challenge, the court explained that defendant had not remained free of criminal conduct from 1998. Rather, he likely spent two years in custody, was released and violated parole, and then committed another crime no later than 2004. While it is true that defendant did not commit a possession of cocaine base offense in 2004, the instant convictions were based on criminal conduct in that same year. That is, despite the court’s error, the essential facts were virtually the same—defendant was released from custody some time in 2000 and jailed some four years later for a felony offense.
For these reasons, we are satisfied, as a matter of law, defendant falls within the spirit of the three strikes law. Defendant committed two felony offenses involving assaultive conduct, as well as a misdemeanor weapons offense within a six-year period. Defendant identifies no authority for the dubious assertion that his 1998 conviction was remote compared to his 2004 felony conduct in this case, a contention we reject as a general principle, and one which is particularly irrelevant where, as here, defendant spent a sizeable portion of that six-year period in state prison. Accordingly, the error in this case does not cast substantial doubt on the trial court’s exercise of discretion, nor does it in any way render its decision irrational. To the contrary, the fact that defendant’s present felonies and prior “strike” conviction included armed assaultive conduct placed defendant firmly within the scheme’s spirit. (See Williams, supra, 17 Cal.4th at p. 161.)
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.