Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD208720 of San Diego County, Roger W. Krauel, Judge.
IRION, J.
A jury convicted David Dwayne Cole of first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).) The jury further found that another person, other than an accomplice, was present in the residence during the commission of the burglary, bringing the offense within the enhancement provided for in section 667.5, subdivision (c)(21). Cole admitted several prior convictions, including three prior strikes, and the trial court imposed a sentence of 35 years to life in prison.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Cole presents two issues on appeal. First, Cole argues that the trial court should not have admitted a witness's in court identification of him because that identification was tainted by an unduly suggestive pretrial identification procedure. Second, he argues that the trial court abused its discretion by not striking his prior strikes. We conclude that Cole's arguments are without merit, and accordingly we affirm.
I FACTUAL AND PROCEDURAL BACKGROUND
At approximately 7:45 p.m. on August 31, 2007, Crystal Guerrero had just finished taking a shower in her apartment located in the Mission Beach neighborhood of San Diego. When she opened the bathroom door, she saw a man push in the screen of her bedroom window and begin to enter the bedroom through the window. The window was approximately 14 feet away from Guerrero, and the bedroom was well lit. Guerrero locked eyes with the man for approximately 10 seconds and could view his upper body. Guerrero screamed for her neighbor, and the man backed away from the window and ran off. Watching through a window, Guerrero could see the man as he left the area.
Guerrero's neighbor and her landlord immediately responded to the screaming and called 911. Guerrero spoke with the 911 operator and gave a description of the perpetrator, and she also gave a description to police officers who arrived at her residence approximately five minutes later. Another witness, Theresa Nakatani, was sitting in a car behind Guerrero's apartment. She saw the perpetrator enter a gate to the apartment building and then run out a short time later.
Based on the description provided by the witnesses, the police apprehended Cole approximately 17 minutes after the incident while he was walking down the street a few blocks from Guerrero's apartment.
The police then transported Cole to an alley outside of Guerrero's apartment and conducted an identification procedure referred to as a curbside showup, in which Cole was displayed for Guerrero to determine if she recognized him. Guerrero identified Cole as the perpetrator, and Cole was charged with a single count of residential burglary. (§§ 459, 460, subd. (a), 667.5, subd. (c)(21).)
During motions in limine, defense counsel moved to exclude evidence of Guerrero's identification of Cole during the curbside showup and any subsequent in court identification. Relying on Guerrero's testimony at the preliminary hearing, defense counsel argued that the curbside showup procedure was impermissible suggestive because, prior to displaying Cole to Guerrero, the police told Guerrero that she would be viewing a suspect who matched the description she had given and that the suspect was on parole for burglary. The trial court granted the motion to exclude Guerrero's identification of Cole during the curbside showup, ruling that the police officers' statement to Guerrero rendered the identification procedure unduly suggestive. However, the trial court ruled that it would allow Guerrero to identify Cole in the courtroom during her trial testimony.
Defense counsel also brought a motion in limine to exclude Nakatani's identification of Cole during the curbside show up and any in court identification by her. The trial court granted the motion in full, based on its ruling that the identification procedure was unduly suggestive and on the fact that Nakatani was not able to identify Cole in the courtroom during an in limine hearing. At trial, upon questioning by defense counsel, Nakatani could not identify Cole in the courtroom.
At trial, Guerrero identified Cole as the perpetrator. On cross-examination, defense counsel elicited testimony from Guerrero that she had also identified Cole at the curbside showup and during the preliminary hearing.
Cole's defense at trial centered on the theory that he had been misidentified. Defense counsel called an expert to testify about witness suggestibility and false identification, and he argued to the jury that none of Cole's fingerprints or DNA was found at the scene of the crime.
The jury convicted Cole of first degree burglary (§§ 459, 460, subd. (a)), and made a true finding, pursuant to the enhancement provided for in section 667.5, subdivision (c)(21), that another person, other than an accomplice, was present in the residence during the commission of the burglary. Cole admitted several prior convictions, including three prior strikes within the meaning of sections 667, subdivisions (b) through (i), and 1170.12 (the Three Strikes law), and two serious prior felonies within the meaning of section 667, subdivision (a)(1).
At sentencing, the trial court denied Cole's motion to strike his three prior strikes, and imposed a sentence of 35 years to life in prison.
II DISCUSSION
A. The Trial Court Did Not Violate Cole's Right to Due Process by Admitting Guerrero's In court Identification of Cole
The first issue is whether, having concluded that the identification procedure employed at the curbside show up was unduly suggestive, the trial court violated Cole's due process rights by nevertheless allowing Guerrero to make an in court identification of Cole. We apply a de novo standard of review in addressing this issue. (People v. Kennedy (2005) 36 Cal.4th 595, 609 (Kennedy) [de novo standard of review applies to issue of whether the trial court should have excluded a witness identification of the defendant due to an unduly suggestive pretrial identification procedure].)
"[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness — i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.... 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' " (People v. Ochoa (1998) 19 Cal.4th 353, 413, citation omitted.) Applying this standard, the trial court concluded that Guerrero's identification of Cole at the curbside show up was the result of an unduly suggestive procedure because the police told her that she would be viewing a suspect that met her description and that the suspect was on parole for burglary. On appeal, the parties do not take issue with the trial court's ruling on that issue.
Instead, focusing on the trial court's ruling that the curbside show up procedure was unduly suggestive, Cole argues that the trial court was also required to exclude any in court identification of Cole by Guerrero during her trial testimony.
The legal standards to be applied in such a situation are well established. "Observation of a suspect through an unfairly suggestive procedure does not always bar identification testimony at the trial." (People v. Bisogni (1971) 4 Cal.3d 582, 587.) "[T]he burden shifts to the People to prove by clear and convincing evidence that the in court identifications were based on the witness' observations of the accused at the scene of the crime, that is, independent of the suggestive pretrial identification." (People v. Cooks (1983) 141 Cal.App.3d 224, 306 (Cooks).) Put simply, "the taint of an unlawful confrontation or lineup may be dispelled if the People show by clear and convincing evidence that the identification of the defendant had an independent origin." (People v. Ratliff (1986) 41 Cal.3d 675, 689 (Ratliff); see also United States v. Wade (1967) 388 U.S. 218, 240 [prosecutor must establish that the in court identification will be "based upon observations of the suspect other than the [excluded out-of-court] identification"]; People v. Banks (1970) 2 Cal.3d 127, 139 [in court identification is admissible when it has "an origin independent of the illegally conducted lineup"]; People v. Nation (1980) 26 Cal.3d 169, 181 [after an unduly suggestive identification procedure, a subsequent identification is admissible if it results from " 'means sufficiently distinguishable to be purged of the primary taint' "]; People v. Caruso (1968) 68 Cal.2d 183, 189 ["To overcome the effect of the taint, the People must... show... that the in court identifications were based upon observations of the accused at the scene of the [crime]."].)
When deciding whether a witness's subsequent identification of the defendant has an origin that is independent of an unduly suggestive pretrial identification procedure, "the factors to be considered include [(1)] 'the opportunity of the witness to view the criminal at the time of the crime, [(2)] the witness' degree of attention, [(3)] the accuracy of the witness' prior description of the criminal, [(4)] the level of certainty demonstrated by the witness at the confrontation, and [(5)] the length of time between the crime and the confrontation.' " (Cooks, supra, 141 Cal.App.3d at p. 306, quoting Neil v. Biggers (1972) 409 U.S. 188, 199-200.) Cole contends that, applying these factors, the prosecution did not meet its burden to establish that Guerrero's in court identification of Cole was based on observations at the scene of the crime independent of the unduly suggestive curbside showup procedure. As we will explain, applying the appropriate factors, we reject Cole's argument and conclude that the prosecution met its burden.
Our Supreme Court referred to these factors in Ratliff, supra, 41 Cal.3d 675, ruling that based on a witness's testimony that (1) "he viewed defendant during the offense"; (2) "his identification was based on his recollection of the robbery"; and (3) "there was no question in his mind regarding the correctness of his identification," the witness's in court identification of the defendant was properly admitted despite a possibly impermissible pretrial identification procedure. (Id. at p. 689 & fn. 2.)
The first two factors are " 'the opportunity of the witness to view the criminal at the time of the crime' " and " 'the witness' degree of attention.' " (Cooks, supra, 141 Cal.App.3d at p. 306.) Guerrero's opportunity to view the perpetrator was established by her testimony that she had looked him in the eyes for approximately 10 seconds at a distance of approximately 14 feet in a well lit room. Her degree of attention was established by her testimony that they had a "good stare-down" and "locked eyes," and that she was "trying to pay attention to his face, considering that was what I needed to identify him with." The first two factors thus fall in favor of establishing that Guerrero's in court identification of Cole had an origin independent of the curbside show up procedure.
Cole argues that the 10 seconds available to Guerrero to observe the perpetrator "is certainly a significant time reduction from the 30 to 60 seconds the California Supreme Court found sufficient in... Kennedy, supra, 36 Cal.4th at p[age] 610." This argument is not persuasive because Kennedy did not state that 30 to 60 seconds was a minimum time frame needed for a witness to accurately identify a perpetrator. On the contrary, Kennedy merely mentioned the 30 to 60 seconds that the witness spent in eye-to-eye contact with the perpetrator as one relevant fact in its analysis. (Kennedy, supra, 36 Cal.4th at p. 610.) Here, under the circumstances of Guerrero's close range encounter with the man attempting to enter her home, we conclude 10 seconds was sufficient for Guerrero to form a memory of the intruder's face.
The third factor is " 'the accuracy of the witness' prior description of the criminal.' " (Cooks, supra, 141 Cal.App.3d at p. 306.) In arguing this factor, Cole relies on trial testimony about the description of the suspect contained in the police dispatches immediately after the crime occurred. In those dispatches, the suspect is described as a white male in his 20's, with a shaved head, possibly blond, possibly 5'10", of medium build, wearing white shorts and no shirt. We note that it is not clear how much of the information in the police dispatch was based on Guerrero's statements to police, as opposed to the statements of another witnesses, such as Nakatani. However, to the extent that the police dispatch description was based on Guerrero's statements, the description appears to have been accurate in many respects. According to the testimony at trial, Cole's California identification card stated that he weighs 180 pounds and stands 5'11" tall. Further, Cole had "very short," "sandy"-colored hair when he was apprehended and was wearing white shorts and no shirt. The age of the suspect contained in the police dispatch was the central detail that did not precisely match Cole's description, as Cole was 36 years old on the date of the crime instead of in his 20's. We conclude that because the police dispatch description was based at least in part on Guerrero's statements to police before she witnessed the curbside show up, and that description was a substantially accurate description of Cole, the factor of " 'the accuracy of the witness' prior description of the criminal' " (Cooks, at p. 306) weighs in favor of establishing an independent origin for Guerrero's in court identification of Cole.
The final two factors, i.e., " 'the level of certainty demonstrated by the witness at the confrontation' " and " 'the length of time between the crime and the confrontation' " (Cooks, supra, 141 Cal.App.3d at p. 306), also tend to establish that Guerrero's in court identification of Cole had an independent origin. There was no indication in Guerrero's testimony that she was uncertain about her identification of Cole on the night of the crime, and when questioned at trial about whether she identified Cole based on what the police had told her about him being a suspect and being on parole for a similar crime, Guerrero testified, "Absolutely not. It was based on the person that I saw entering into my house." Further, the curbside show up occurred at approximately 8:19 p.m., which was less than an hour after the crime occurred, when the perpetrator's face was still fresh in Guerrero's mind, lessening the risk that the suggestive identification procedure caused her to believe that Cole was the perpetrator of the burglary.
Based on all of these factors, we conclude that the trial court did not err in admitting Guerrero's in court identification of Cole at trial, as the record provides clear and convincing evidence that the identification was "based on the witness' observations of the accused at the scene of the crime, that is, independent of the suggestive pretrial identification." (Cooks, supra, 141 Cal.App.3d at p. 306.)
B. The Trial Court Did Not Abuse Its Discretion by Denying Cole's Motion to Strike His Prior Strikes
We next consider Cole's contention that the trial court abused its discretion in refusing to strike his prior strikes.
In the trial court, defense counsel argued that the strikes should be stricken because (1) Cole was purportedly innocent of the instant offense and a victim of witness misidentification; (2) Cole's three prior strikes consisted of burglaries committed in 1992, and his "criminal history has been decreasing since 1992"; and (3) the current offense is less serious than other instances of the same crime because "there was no actual entry, no harm caused and no property taken."
In denying the motion to strike the prior strikes, the trial court stated: "From 1992, when the defendant was first convicted of a strike offense, which was a residential burglary[,] through the following year, when the defendant was convicted of the second strike offense, a residential burglary, and then followed by over the next several years convictions that included driving under the influence, driving on a suspended license, resisting a police officer, and a drug offense, the defendant has brought with him today a 16-year history of criminal convictions, together with parole and probation violations. In the current case, he stands convicted by a jury of a residential burglary, a nighttime entry into a residence where the owner was present. The motion to strike the strike for sentencing is denied."
A trial court may strike a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony (i.e., a strike) on its "own motion or upon the application of the prosecuting attorney... in furtherance of justice." (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In determining whether to strike a strike, the court "must consider whether, in light of the nature and circumstances of [the defendant's] 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." (Williams, at p. 161.)
The trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "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." ' " (Id. at p. 376.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and thus the trial court's " ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review 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." (Ibid.)
We conclude the trial court acted well within its discretion to deny Cole's motion to strike his prior strikes. Here, the record shows that the trial court reasonably exercised its discretion and stated its reasons as required. It considered the nature and date of Cole's prior strikes and the nature of his current offense. It was within reason for the trial court to conclude that because of the facts of this case and the nature and dates of Cole's prior offenses, he was not wholly "outside the scheme's spirit" (Williams, supra, 17 Cal.4th at p. 161), and that it should not strike Cole's prior strikes. We cannot conclude that the trial court's refusal to strike Cole's prior strikes was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)
Cole argues that the trial court abused its discretion in refusing to strike his prior strike because it focused solely on Cole's criminal history and the present offense in deciding whether to strike the prior strikes and did not explicitly consider "the cause of those crimes" and Cole's "non-violent conduct." We reject this argument. The trial court's focus on Cole's criminal history and the present offense is consistent with our Supreme Court's statement that a court should focus on "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." (Williams, supra, 17 Cal.4th at p. 161.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.