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People v. Barron

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 7, 2012
E052515 (Cal. Ct. App. Feb. 7, 2012)

Opinion

E052515

02-07-2012

THE PEOPLE, Plaintiff and Respondent, v. GARY ESHAWN BARRON, Defendant and Appellant.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lise S. Jacobson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FSB1001645)


OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed with directions.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lise S. Jacobson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant Gary Eshawn Barron was convicted of one count of second degree robbery (Pen. Code,§ 211) and one count of elder abuse (§ 368, subd. (b)(1)). The jury found true the elder abuse enhancement allegation pursuant to section 667.9, subd. (a). Following a jury trial on the priors, the jury returned true findings as to the allegations that defendant suffered a prior conviction of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had one prison prior (§ 667.5, subd. (b)), and had one strike prior (§ 667, subd. (a)(1)). Defendant was sentenced to state prison for a total term of 13 years, consisting of the midterm of six years on count 1 with an additional term of one year for the elder enhancement, five years for the serious felony prior, and one year for the prison prior. Defendant appeals, challenging the admission of the victim's infield identification, the exclusion of his girlfriend's testimony regarding the arresting officer's prior arrest of defendant, and the one-year prison prior enhancement.

All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

On April 22, 2010, at approximately 7:40 p.m., 72-year-old Marianne Jacobs and her fiancé, Garry Hulderman, were entering their car in San Bernardino County when a man grabbed Jacobs's purse from her shoulder, causing her to "g[e]t slapped around" towards the car. Jacobs watched the assailant run across Highland Avenue. She began to chase him, following him down two alleys before losing sight of him. When Jacobs stopped, she asked a repairman if he had seen anyone run by. The repairman replied that he had seen a male wearing red pants and a gray jacket.

Hulderman saw a police car and flagged down Officer Robert Guenther. Jacobs told the officer that she had been robbed by a Black male in his twenties, about six feet tall, wearing red pants and a gray jacket. The officer radioed information regarding the incident, including a description of the robber and the stolen property, along with the direction in which the suspect had fled. A search involving several police cars and a police helicopter was initiated.

At trial, Jacobs denied telling the officer the robber's age, height or race.

Officer Guenther located a suspect matching Jacobs's description inside Tom's Burgers on the corner of Mountain and Highland Avenues. As Officer Guenther approached the restaurant, the suspect exited through the opposite door. Officer Robert Bellamy, who had been in the area when he heard the radioed information, saw defendant, who matched the suspect's description, exit Tom's Burgers. As soon as defendant made eye contact with Officer Bellamy, defendant started running.

Following a chase and struggle involving the use of force, the officers were able to handcuff defendant. Officer Guenther returned to Jacobs about 10 to 15 minutes after he initially left her and took her to where defendant was being held for an infield identification. Jacobs identified defendant, stating she was 110 percent sure that he was the robber. Officer Bellamy retraced the chase route and located Jacobs's purse in a trash dumpster in the rear parking lot of Tom's Burgers. About 10 minutes after the identification, an officer returned Jacobs's purse to her, but her cell phone and $18 in her wallet were missing.

A short time later, Officer Guenther called Jacobs's cell phone. Officer Frank Macomber, who had allowed the other officers to place defendant in the back of his unit, heard a cell phone ring and searched the back of his patrol car where defendant had been detained. The officer located the cell phone "slightly shoved up underneath the right front passenger[] seat." The cell phone was returned to Jacobs.

Defendant was taken to Arrowhead Regional Medical Center for medical treatment and was "medically cleared." He had $68 in cash on his person when he was booked into the jail.

In defense, Amber Martin, defendant's girlfriend, testified that Tom's Burgers is next door to their old residence and about a 15-minute drive from their current residence. Defendant frequently visited a friend who continued to live in their old neighborhood, and the bus stop was across the street from Tom's Burgers.

II. VICTIM'S INFIELD IDENTIFICATION

A. Additional Background Facts

In a pretrial motion, defendant moved to exclude Jacobs's out-of-court identification of him on the grounds the out-of-court identification procedure was unduly suggestive because the victim saw the robber only for a "split second," she was shown one Black male in handcuffs, he was likely sweating and breathing heavily, and he was wearing clothing described to her by the repairman. Defendant also argued that any subsequent in-court identification would be tainted by the earlier identification. In response, the prosecution argued that the curbside lineup was proper, because it was close in time to the robbery and the victim was certain of her identification once she saw defendant. The prosecutor faulted defendant for not requesting another lineup. Further, he argued that even if the out-of-court identification was suggestive, Jacob's in-court identification would still be valid. The trial court denied the motion, ruling that the infield identification was not overly suggestive.

After trial, defendant filed a motion for new trial challenging, inter alia, the admissibility of Jacobs's identification of defendant. The trial court denied the motion.

On appeal, defendant contends the trial court erred by not excluding Jacobs's out-of-court and in-court identifications of defendant, because the pretrial identification was unduly suggestive and unnecessary.

B. Standard of Review

"We independently review 'a trial court's ruling that a pretrial identification procedure was not unduly suggestive.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 698-699.)

"'Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.' [Citation.]" (People v. Avila, supra, 46 Cal.4th at p. 698.) The constitutional concern is whether the identification procedure was so impermissibly suggestive that it creates a very substantial likelihood of misidentification under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989; Simmons v. United States (1968) 390 U.S. 377, 384.) "'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, taking into account 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.' [Citation.]" (People v. Kennedy (2005) 36 Cal.4th 595, 608, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)

C. Analysis

According to defendant, "the suggestiveness of the [single person] show-up and the absence of necessity" weigh in favor of exclusion of the identification evidence. Defendant points out that he was "handcuffed and standing on the street surrounded by three or four officers after being pulled from a patrol car"; that the showup was conducted "within an hour of the robbery" and "near the robbery"; that while Jacobs stated she was ready for the identification, she told the officer that "she did not think she could identify her assailant"; and finally, although she never saw her assailant's face, Jacobs identified defendant as her assailant based on his general appearance. Furthermore, defendant argues that the showup was unnecessary, because "neither [defendant] nor [Jacobs] were subject to life- or consciousness-threatening conditions, and neither was likely to become unavailable."

A single person showup is not inherently unfair. (People v. Ochoa (1998) 19 Cal.4th 353, 413.) Moreover, the fact that the person was handcuffed does not automatically make the showup inherently suggestive. (In re Carlos M. (1990) 220 Cal.App.3d 372, 386; People v. Gomez (1976) 63 Cal.App.3d 328, 335-337.) Rather, each case is assessed in light of the totality of the circumstances. (People v. Cowger (1988) 202 Cal.App.3d 1066, 1071.) Here, Jacobs gave a detailed and accurate description of the robber to the responding officer. In conducting the infield identification, the officers did nothing to suggest that Jacobs identify defendant as the robber. The officer read Jacobs the "Detainee Admonishment Card," which states that a subject has been detained "who may or may not be involved in the crime," and that there is no obligation to identify anyone. Although Jacobs indicated she would not be able to identify her assailant "by face," she stated she was "'a hundred and ten percent'" sure of the identification. At trial, Jacobs explained that she had recognized defendant as her assailant based on his clothing and stature.

Considering the totality of the circumstances, Jacobs had the opportunity to observe her assailant while she chased him across the street and down two alleys in "broad daylight." Although she may not have seen his face, she provided the officer with an accurate description of defendant's gender, ethnicity, height and clothing. The infield identification was made within 30 minutes after the incident, and Jacobs was certain that defendant was her assailant. Although defendant claims that Jacobs's identification is unreliable because the repairman identified defendant's clothing, the People note that Jacobs testified that she saw what her assailant was wearing, namely, red pants and a gray sweater, and the repairman simply confirmed that he had seen someone wearing the same clothing run by. Regarding Jacobs's statement to the 911 operator that she "didn't see him," we agree with the People's observation that such statement, when viewed in the context of Jacobs's testimony, merely meant "she did not see the robber's face during the 'split second' robbery, she only saw his clothing and stature as he fled." Although we agree with defendant that there was no emergency situation requiring an infield identification, we still conclude that Jacobs's identification of defendant was reliable and properly admitted.

At oral argument, defense counsel questioned whether 7:40 p.m. on April 22, 2010, could be considered "broad daylight." However, that is how the victim described the lighting on cross-examination and the description was not contradicted. In fact, the victim's fiancé agreed that "it was still light outside."

Defendant also argues that the infield identification was unnecessary because there was no emergency to warrant it. We agree with the defendant that there were no exigent circumstances requiring an immediate showup.

To the extent defendant claims that Jacobs made an in-court identification of defendant, the People correctly point out that Jacobs only identified defendant in court as the individual she had seen in the lineup on the night of the robbery.

D. Harmless Error

Notwithstanding the above, for argument purposes, even if we assume the trial court erred in admitting Jacobs's identification of defendant as the robber, such error was harmless. As the People aptly note, the evidence pointing to defendant as being the robber was overwhelming. First, Jacobs's description of the robber that was given to the officer accurately described defendant, i.e., Black male in his twenties, about six feet tall, wearing red pants and a gray jacket. Second, in a 911 call, a repairman who had seen the robber flee also described clothing worn by defendant that night. Third, when officers saw defendant at a restaurant in the area of the robbery, defendant took flight. Fourth, Jacobs's purse was recovered from the dumpster behind the restaurant where defendant was initially located by the officers. Fifth, Jacobs's cell phone was located in the patrol car where defendant had been detained following his arrest. And finally, defendant was in possession of $68 in cash, including a $10 bill, $5 bill, and three $1 bills, representing $18 that also happened to be missing from Jacobs's wallet when it was returned to her.

Given the state of this evidence, any error in admitting Jacobs's infield identification of defendant as the robber was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Craig (1978) 86 Cal.App.3d 905, 914 ["A tainted pretrial identification makes an in-court identification inadmissible unless it can be shown the in-court identification had an origin independent of the pretrial identification. [Citation.]"]; People v. Sandoval (1977) 70 Cal.App.3d 73, 86 [error in admitting evidence of victim's tainted in-court identification was harmless given the "ample untainted highly probative evidence linking defendant to the commission of the robbery"].)

III. EXCLUSION OF TESTIMONY OF DEFENDANT'S GIRLFRIEND

A. Additional Background Facts

Prior to trial, the prosecution moved to exclude the testimony of defendant's girlfriend, Martin, regarding Officer Bellamy's prior arrest of defendant for domestic violence, on the grounds that the evidence was not relevant, was more prejudicial than probative, and was unduly time consuming. Defense sought to admit the evidence to show that Officer Bellamy and defendant had a "prior run-in."

Defense counsel previously assured the court that he was not "going to argue that [the officer] took the purse, and . . . planted it in the Dumpster . . . ."

At the Evidence Code section 402 hearing, Martin testified that she had one prior contact with Officer Bellamy in March 2009. She explained that she was pregnant at the time. She and defendant were arguing, and when she attempted to drive off, he walked to the passenger side of the car and tried to "snatch [her] keys," causing the two to have a "tug of war." Officer Bellamy pulled up behind them in a patrol car, got out, and told defendant to "[f]reeze." The officer "told [defendant] to get down . . . on his hands and knees before he shoots him." The officer asked Martin if defendant was trying to rob her, and she explained the situation. Officer Bellamy asked whether defendant had hit her, and she said that he had not. Upon running defendant's name through the system, Officer Bellamy learned that defendant was on parole. Although Martin had told the officer that defendant did not commit any crime, the officer arrested defendant for battery. On the advice of defendant's parole officer, Martin subsequently wrote a statement about what had happened, and defendant was released a few days later. Defendant appeared in court but learned the case was not on calendar because the district attorney had never picked up the case.

According to defense counsel, Martin's testimony was relevant to establish that Officer Bellamy was biased against defendant. In response, the prosecution made an offer of proof that Officer Bellamy would testify that he believed he witnessed a crime in progress when he saw defendant and Martin, either a purse snatching or a domestic violence incident. Officer Bellamy was the officer who chased and arrested defendant in the instant case and found Jacobs's purse in the dumpster. The prosecutor argued that Martin's proposed testimony was irrelevant because one prior arrest did not establish that Officer Bellamy was biased or did anything wrong in the case at bar. Also, the prosecutor argued that the evidence would be time consuming and confusing for the jury, because it would require testimony regarding the facts of another incident involving defendant.

During oral argument, Defense counsel argued that the testimony was relevant as to the issue of whether Officer Bellamy planted the cell phone in the patrol car. However, at trial, defense counsel never raised such argument.
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After listening to argument, the court found that the proposed testimony was more prejudicial than probative. It explained that the failure to file charges was up to the district attorney, and the jury should not have to decide whether defendant's arrest in the price incident was valid. Rather, the issue was whether defendant was the robber in this case. Defense counsel argued that evidence of the prior incident was relevant to explain why defendant ran from Officer Bellamy. The court agreed to allow defense counsel to question the officer regarding his prior contact with defendant, but that defense counsel could not get into the issue of whether there was a valid arrest.

On cross-examination, Officer Bellamy testified that he had prior contact with defendant, but the officer denied telling defendant he hoped defendant goes to prison, or that if he ever saw defendant on the street, he would "put 15 rounds in him." On redirect, the officer testified that he did not have an "axe to grind" with defendant.

Following his conviction, defendant moved for a new trial on the grounds that the trial court erred in refusing to allow Martin's testimony regarding defendant's prior arrest for purposes of showing that Officer Bellamy was biased. The motion was denied.

On appeal, defendant contends, "[t]he trial court's refusal to allow . . . Martin to testify to the facts of a prior contact between [defendant] and Officer Robert Bellamy limited defense counsel's ability to properly cross-examine the officer as to bias and, thus, credibility." He argues his rights to confrontation, due process and a fair trial were violated and the People cannot show that the trial court's error in not allowing this impeaching evidence was harmless beyond a reasonable doubt.

B. Standard of Review

Citing numerous case authorities, defendant claims the exclusion of Martin's impeaching testimony violated his federal constitutional rights to confrontation, due process, and a fair trial. "A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations]. . . . Although the high court in Chambers [v. Mississippi (1973) 410 U.S. 284] determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question 'the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citation.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) "'Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.' [Citation.]" (People v. Cornwell, supra, 37 Cal.4th at p. 81.)

C. Analysis

Here, the trial court acted within its discretion in excluding Martin's testimony, given the fact that its minimal probative value was outweighed by its prejudicial effect. According to defendant, "Officer Bellamy's alleged behavior during the prior encounter with [defendant] violated the duties of a sworn police officer. Rather than protect and serve, Officer Bellamy's actions suggest harassment." Defendant argues that "the district attorney's subsequent unwillingness to pursue charges against [defendant] for the offenses alleged by Officer Bellamy reveal his potential bias against [defendant] in the present case and explain [defendant's] fear of the officer's involvement." However, the fact that Officer Bellamy arrested defendant on a prior occasion does not establish bias. Martin's proposed testimony did not show any wrongful conduct on the officer's part, defendant never filed a formal complaint against the officer, and the fact that the district attorney's office chose not to prosecute does not establish any wrongful conduct. Rather, it would have been prejudicial, time consuming and confusing for the jury to determine the appropriateness of the prior arrest. As the People point out, besides the necessary detailed testimony regarding the circumstances, "it would have required evidence regarding police policy and procedure when domestic violence is suspected, evidence that [defendant] was on parole (one of the reasons Officer Bellamy placed him under arrest) and evidence regarding the District Attorney's charging process (to show that the fact that the District Attorney chose not to file charges did not necessarily establish that the arrest was improper)." Given these circumstances, the trial court did not abuse its discretion in excluding the evidence under Evidence Code section 352.

Moreover, exclusion of Martin's testimony did not deprive defendant of his rights to confrontation, due process or a fair trial. In his defense, defendant, via cross-examination, asserted that he was not the person who robbed Jacobs. Defendant challenged the prosecution's witnesses, calling into question Jacobs's identification of him as her assailant. Defendant also questioned whether Officer Bellamy harbored ill feelings towards him by asking the officer if he had previously told defendant he hoped defendant goes to prison, and that if he ever saw defendant on the street, he would put 15 rounds in him.

D. Harmless Error

Even if we were to find constitutional error, it would be harmless beyond a reasonable doubt. Improperly denying a defendant the opportunity to cross-examine an adverse witness on matters reflecting on the witness's credibility may be subject to the harmless error standard set forth in Chapman v. California, supra, 386 U.S. at p. 24; "'[h]owever, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. . . .'" (People v. Chatman (2006) 38 Cal.4th 344, 372.) "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Accordingly, once we conclude, post, that there is no reasonable probability that the admission of this evidence would have changed the result, we must likewise conclude there was no confrontation clause violation.

While the circumstances surrounding Officer Bellamy's prior contact with defendant were excluded, defense counsel was allowed to question the officer concerning prior statements allegedly made by the officer to defendant. Even if Martin had been allowed to testify about the prior contact, there is no reasonable probability that the testimony would have changed the result. First, Martin had an obvious motive to lie, given the fact that defendant was her boyfriend and the father of her child. Second, the prior contact involved a possible domestic violence incident where defendant took Martin's keys while she was inside her car. Third, the jury would have also learned that defendant was on parole at the time of the prior incident. Fourth, Officer Bellamy's testimony was independently corroborated. Fifth, the overwhelming evidence identified defendant as the assailant. And, the most damaging evidence was Jacobs's cell phone being located in the patrol car where defendant had been detained.

Under these circumstances, we perceive no reasonable probability that the admission of evidence of Officer Bellamy's prior contact with defendant would have led to a more favorable result for defendant.

IV. PRISON PRIOR ENHANCEMENT

Defendant contends, and the People concede, that the trial court erred in failing to strike defendant's one-year prison prior enhancement.

Section 667, subdivision (a)(1) provides for a consecutive enhancement of five years when a prior conviction qualifies as a "serious felony." Section 667.5, subdivision (b) provides for a one-year enhancement if a prior conviction resulted in a prison sentence. In People v. Jones (1993) 5 Cal.4th 1142, 1150 through 1153, the California Supreme Court held that only the enhancement with the greater term of imprisonment can be imposed when the same prior offense qualifies as a "serious felony" under section 667, subdivision (a)(1), and resulted in a prior prison term under section 667.5, subdivision (b). Here, both the enhancements for the prior serious felony and the prior prison term were based on defendant's conviction for robbery on February 24, 2006. Thus, sentence could not legally be imposed on both enhancements. The enhancement carrying the lesser term must therefore be stricken.

V. DISPOSITION

The matter is remanded to the trial court with directions to strike the one-year enhancement imposed for defendant's prior prison term. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.
We concur:

KING

J.

MILLER

J.


Summaries of

People v. Barron

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 7, 2012
E052515 (Cal. Ct. App. Feb. 7, 2012)
Case details for

People v. Barron

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY ESHAWN BARRON, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 7, 2012

Citations

E052515 (Cal. Ct. App. Feb. 7, 2012)