Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 62-072300, 62-070570, 62-063193A
RAYE, J.
In Placer County Superior Court case No. 62-072300, a jury convicted defendant Justin Michael Cooper of unlawful taking of a vehicle, receiving stolen property, unlawfully resisting a peace officer, and giving a false name to a peace officer. Based upon the jury’s findings, defendant was also found in violation of probation in Placer County Superior Court case Nos. 62-070570 and 62-063193A.
Sentenced to state prison for five years four months, defendant appeals, contending the trial court committed reversible error by (1) denying his motion to preclude the in-court and in-field identifications of him, which purportedly were obtained by irreparably suggestive means, and (2) precluding testimony from his proffered expert on eyewitness identification. We reject each claim.
FACTS
On August 5, 2007, Ronald Thomas was at his home in Granite Bay with his wife, Cindy, and their three sons, Ronnie (aged 17), Eddie (aged 16), and Dan (aged 14). Parked in the driveway were their three vehicles -- a Chevrolet Yukon, a Mercedes Benz, and a Chevrolet Trailblazer.
To avoid confusion, we will refer to the Thomases by their first names.
Around 1:00 a.m., the alarm on one of the vehicles sounded and Ronald went out to investigate. The Yukon and Mercedes had been broken into and items had been taken from each vehicle. While Ronald and Cindy were standing outside, some college-aged individuals drove up and said they had seen the persons who had broken into the Thomases’ vehicles run away and get into their own cars, one of which was a “’90s gold Honda.”
Ronald, accompanied by Ronnie and Eddie, got into the Yukon and went searching for the Honda. About three-quarters of a mile from his home, while stopped at an intersection, Ronald saw a tan or gold Honda driving directly toward him. The intersection was well-lit and Ronald had his high beams and fog lights on. The Honda stopped at the intersection and Ronald could see the driver, whom he identified as defendant.
Upon seeing Ronald, defendant “peel[ed] out” and Ronald went after him. Ronald pulled alongside defendant in an unsuccessful effort to force him to pull over, during which time Ronnie and Eddie each got a good look at defendant; they identified him in court. The vehicle chase ended when defendant pulled over, jumped out of the Honda, and climbed a fence bordering an apartment complex.
As Ronald was driving back he saw a police officer and reported the incident to him. Officers went to the apartment complex where defendant was last seen and began searching the area. Defendant was found, apprehended, and returned to where Ronald, Ronnie, and Eddie were waiting. All three Thomases identified defendant as the driver of the Honda. Several items found in the Honda, which was stolen, were identified by Ronald as having been taken from his Yukon. During booking, jail staff asked defendant if he had any mental disabilities. Chuckling, he said, “I guess a little -- I’m out here doing this stupid stuff.”
DISCUSSION
I
Defendant contends that his in-field identifications by Ronald, Ronnie, and Eddie were so “inherently suggestive and . . . unreliable” that those identifications and the Thomases’ subsequent in-court identifications should have been ruled inadmissible. We disagree.
“It is well established that convictions based on eyewitness identification at trial, after a pretrial identification, constitute a denial of due process only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citations.] A court must review the ‘totality of the circumstances’ in order to determine whether due process has been violated. [Citations.]” (People v. Johnson (1989) 210 Cal.App.3d 316, 322.) A single person show-up is not necessarily unfair and must be assessed in the light of the totality of the circumstances. (Stovall v. Denno (1967) 388 U.S. 293, 302 [18 L.Ed.2d 1199].) In a challenge to the fairness of a pretrial identification, the burden is on the defendant to show that it was suggestive or unfair. (People v. Cooks (1983) 141 Cal.App.3d 224, 305.)
Defendant’s motion to exclude his in-field and all subsequent identifications was heard on offers of proof from the prosecutor and defendant’s counsel. The prosecutor stated that defendant had been arrested in a neighborhood near where the Thomases lived; that he had been taken a couple of blocks from the point of arrest to where Ronald and his sons had initially contacted the police; that Ronald, Ronnie, and Eddie were separated and admonished individually; and that each of the Thomases separately identified defendant as the driver of the Honda. The description given of defendant included information that he was wearing a white T-shirt and was about 20 years old.
Defendant pointed out that at the time of the show-up he was handcuffed in front of a police car with an officer beside him; that 30 minutes had elapsed between when Ronald first saw defendant and defendant was shown to them; that it was dark, “things” happened quickly, and they had very little opportunity to view him during the chase; that they identified defendant as being about 5 feet 11 inches tall and weighing 155 pounds, with medium-length brown hair, whereas defendant is 6 feet 2 inches tall and weighs 190 pounds; that Ronald had said defendant was wearing blue jeans, but when defendant was arrested he was wearing black jeans; and that defendant had tattoos on his arms, which none of the witnesses mentioned but which would have been difficult to miss.
As noted above, the burden is on defendant to prove that the show-up was unduly suggestive. Like the trial court, we are not persuaded by the factors cited by defendant. Defendant was brought before the Thomases within 30 minutes of having first been seen by them when he was driving the tan or gold Honda, a circumstance favorable to an accurate identification. (People v. Cowger (1988) 202 Cal.App.3d 1066, 1071-1072 [prompt on-the-scene confrontation between suspect and witness aids in assuring accuracy of identification].) The description of defendant by the witnesses (white male adult, about 20 years of age, wearing a white T-shirt and blue jeans, 5 feet 11 inches tall, 155 pounds, with medium-length brown hair) was reasonably close to defendant’s appearance when he was shown to the witnesses (white male adult, about 20 years of age, wearing a white T-shirt and black jeans, 6 feet 2 inches tall, and 190 pounds). The description was, as the court noted, “not of a particularly skinny or of a particularly heavy [or] enormously tall or short person.” The pants being described as blue jeans and defendant’s wearing black jeans was an insignificant distinction given that the witnesses saw defendant’s pants at night when he was running away from them. What was important was that he was wearing dark jeans, rather than shorts or white pants.
In addition to rearguing the factors cited by defense counsel, defendant incorporates into his argument “[e]xperimental data” taken from various studies on single person show-ups. However, since this evidence was not before the trial court at the time it rendered its decision, we disregard it. (People v. Berryman (1993) 6 Cal.4th 1048, 1070 [appellate court reviews challenge to court’s ruling on a motion based on evidence before the trial court at the time it made the ruling], overruled on a different point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
As to the tattoos on defendant’s arms not being mentioned by the witnesses, this is easily accounted for by the witnesses concentrating on seeing his face and it being dark for most of the chase. Defendant’s hair was described as medium length, which defendant disputed. However, the court was shown a photograph of defendant that it stated could be described as short or medium in length, and defendant did not dispute this assessment.
Also, and of no little import, prior to the Thomases’ making their identifications, they were separated and admonished, and all three independently identified defendant as the driver of the Honda. Given the totality of the circumstances, defendant has failed to establish an unduly suggestive show-up.
II
Defendant contends that the trial court’s refusal to permit him to present testimony by an expert witness regarding eyewitness identification was an abuse of discretion that deprived him of his Sixth Amendment right to present a defense. We disagree.
In a footnote, the People urge us to rule that defendant’s constitutional claim is procedurally barred because he did not raise it in the trial court. The claim is not procedurally barred. Even though a defendant does not object to a court’s ruling as a violation of due process, such a claim is nevertheless reviewable on appeal where, as here, the same facts upon which his objection is made also have the consequence of being a due process violation. (People v. Partida (2005) 37 Cal.4th 428, 434-435.)
“The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] As [our Supreme Court has] observed, ‘A defendant’s constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant’s right to present witnesses.’ [Citations.]” (People v. Lucas (1995) 12 Cal.4th 415, 456.)
“We reiterate that the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion . . . . We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecutions’ case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (People v. McDonald (1984) 37 Cal.3d 351, 377, fn. omitted, italics added, overruled on a different point in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
Defendant’s argument fails because this is not a case lacking independent evidence corroborating the eyewitness identification testimony.
The burglaries of the Thomas family’s vehicles occurred about 1:00 a.m. Around 1:20 a.m., Ronald told Officer Forest Richardson of the burglary, the chase of the gold Honda, and the driver’s abandonment of the Honda and flight into the Granite Creek Apartments complex. Several officers were dispatched to the area of the complex to search for the suspect, who was described as 5 feet 11 inches tall, 155 pounds with light-brown hair, and wearing a white T-shirt and blue jeans or sweats. About 1:50 a.m., defendant was discovered hiding near the apartment complex, a distance of about 200 yards from where the Honda had been abandoned, and following a foot chase, he was apprehended. Defendant was wearing a white T-shirt and black jeans, and was described as being 6 feet 2 inches tall and 190 pounds, with blonde hair. When arrested, defendant said his name was Josh Crow and his birth date was June 15, 1984, rather than his actual name and the true date of August 13, 1985. When asked at booking whether he had any mental disabilities, defendant replied, “I guess a little -- I’m out here doing this stupid stuff.”
Consequently, substantial independent evidence supported the eyewitness identification, and the court did not abuse its discretion in denying defendant’s proffered expert testimony.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.