Opinion
B293530
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. NORMAN DIXON, Defendant and Appellant.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Kathy S. Pomerantz, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA144025) APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed and remanded. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
A trial jury convicted defendant and appellant Norman Dixon (defendant) of robbing victim Margarita Lagunas (Lagunas) as she was depositing money at an ATM. We consider whether Lagunas's identification of defendant at a single-person show-up violated defendant's due process rights and whether a remand is necessary to allow the trial court to consider exercising recently conferred discretion to strike prior serious felony conviction enhancements when in furtherance of justice.
I. BACKGROUND
In addition to the robbery of Lagunas, defendant was charged with another count of first degree robbery and a count of attempted first degree robbery, both concerning other victims. These counts were tried with the charge of robbing Lagunas, but the jury did not reach a verdict on these other counts. We do not discuss the facts concerning the other two charges.
Between 6:00 and 7:00 p.m. on July 25, 2017, Lagunas drove to a Chase bank branch to deposit money at an ATM. Because it was summer, it was "very light" outside.
Lagunas noticed a man, later identified as defendant, riding a bicycle in the bank's parking lot. She saw his face and smiled at him because he looked familiar and she thought she had seen him before in her neighborhood. Lagunas walked to the ATM while holding five $20 bills, and she put her bank card in the ATM slot.
Lagunas then heard a noise behind her and she turned and saw defendant standing about two feet away. Defendant pointed a screwdriver at Lagunas's stomach and motioned for her to give him her money. Lagunas was "afraid for [her] life," and threw the cash in her hand on the ground. Defendant picked up the money and rode away on his bicycle. Lagunas called 911 and police officers arrived roughly an hour later.
B. Police Investigation, and Lagunas's Identification of Defendant
Still nervous from the robbery when the police arrived, Lagunas provided the officers an account of what happened and an "approximate" description of defendant. The officers asked Lagunas to describe the clothes the robber was wearing, and all Lagunas could remember was a brown jacket.
Lagunas also gave the 911 operator a description of the robber. She said he was a Black man between 30 and 35 years old, but she would later explain she was "really bad at guessing ages."
Los Angeles Police Department (LAPD) Detective Norman Peters (the lead investigator on the case) obtained surveillance video from the Chase branch depicting the robbery. The video was "a little bit blurry," but Detective Peters captured a still photograph of the perpetrator from the video and distributed a flyer bearing the photograph to police stations in the hope someone would be able to identify the robber.
LAPD Officer Michael Hofmeyer recognized the person in Detective Peters's flyer as defendant. Officer Hofmeyer contacted Detective Peters and told the detective he believed defendant was the person depicted in the photo. Armed with that information, Detective Peters created a photo lineup with a picture of defendant and five other men (a "six-pack") to show Lagunas.
Officer Hofmeyer was assigned to patrol an area that included a housing development defendant was often in and around, located about one block away from the bank where Lagunas had been robbed. During a period of about two and a half years, Officer Hofmeyer had seen defendant on his bike or on foot in the area between 50 to 100 times, and had spoken with him informally around 25 times.
Detective Peters and another LAPD officer visited Lagunas at her home less than a month after the robbery. After showing Lagunas still photos captured from the surveillance video of the robbery, the officer read Lagunas an identification admonition. The admonition advised Lagunas she would be presented with a group of photographs and asked to say whether she recognized anyone in the pictures as someone involved in the robbery; the admonition also cautioned Lagunas that the photos may or may not include a picture of the man who robbed her.
When Lagunas viewed the six-pack Detective Peters prepared, she thought she recognized defendant's photograph (the photo in position number two) but told the police she couldn't make a positive identification from just the photos because she thought people sometimes look different in photos and she wanted to be sure her identification was accurate. Lagunas said she could make a certain identification of the robber if she were to see him again in person, and then either Lagunas or the police (there was conflicting testimony) suggested they attempt to arrange an in-person show-up of a possible suspect.
Roughly 20 minutes later (i.e., 20 minutes after showing Lagunas the six-pack), the police found and detained defendant—about 100 yards away from the Chase branch where the robbery occurred. The police called Lagunas, told her they had detained a person, and asked if she would go view the person to see if she recognized him. She agreed, and when she arrived in the area where defendant was detained, the police read her another standardized identification admonishment that explained "just because this person is detained does not mean . . . he is guilty or innocent." Upon seeing defendant, Lagunas identified him as the person who robbed her. That triggered defendant's arrest.
C. Trial
At the criminal trial that ensued, the defense was mistaken identification.
To that end, defendant's trial attorney sought to establish, when cross-examining Lagunas, that she focused only on the screwdriver the robber was holding and did not get a look at the robber's face. Defendant's attorney also asked questions in an attempt to establish viewing the six-pack with defendant's photo is what prompted her to identify defendant as the robber in the subsequent one-person field show-up. Lagunas, however, steadfastly confirmed her identification of defendant as the person who robbed her, explaining she looked at the robber's face while he held the screwdriver and, even before that, looked at defendant when parking her car (smiling at him) because she thought she had seen him around the neighborhood before.
The defense also put on a defense case and called Dr. Mitchell Eisen, who often testifies as an expert on eyewitness identification, as a defense witness. He opined a process of identification like the one that developed in this case (an inconclusive six-pack identification followed by an in-person field show-up) was "wildly suggestive."
The jury rejected the mistaken identity (via suggestive identification) defense and found defendant guilty of robbing Lagunas. The trial court sentenced defendant to state prison for a term of 22 years, ten years of which was attributable to imposition of two prior serious felony conviction enhancements under Penal Code section 667, subdivision (a)(1).
II. DISCUSSION
Defendant argues the single-person "field show-up conducted by police immediately after [Lagunas] was unable to identify [defendant] as the suspect in a photographic line-up caused the subsequent identification to be unreliable and wildly suggestive giving rise to irreparable mistaken identification of [defendant]." He also asks us to remand to give the trial court an opportunity to consider whether it wishes to exercise sentencing discretion it did not have at the time it sentenced defendant.
Single-person show-ups for identification purposes usually carry an element of suggestiveness, and that is true here. But it is also undisputed that Lagunas told the police, when viewing the six-pack, that she could make a certain identification of the robber if she were to see him again in person, and Lagunas testified at trial that she thought she recognized defendant as the robber in the six-pack before the show-up but wanted to be certain by making a non-photo-based identification. In these circumstances, we think the identification process as it developed was not unduly suggestive; indeed, if the contrary were true, the People would risk reversal by asking a witness to make an in-court identification if the witness was previously unable to make a positive out-of-court identification—and that is not the law. (People v. Mack (1977) 66 Cal.App.3d 839, 859-860; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1155 ["Insofar as defendant contends that an in-court identification not preceded by a lineup is impermissibly suggestive and prejudicial as a matter of law, he is wrong"].) Further, and in any event, we are convinced Lagunas's identification of defendant as the robber was reliable under the totality of the circumstances even if the pretrial identification process did pose a high degree of suggestiveness. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 168 ["When an eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be allowed to hear and evaluate his identification testimony unless the "'"totality of the circumstances"'" suggests '"a very substantial likelihood of irreparable misidentification"'"].)
We therefore shall affirm defendant's conviction, but we will remand the matter to the trial court because we agree with the parties that the court should have an opportunity to consider whether it wishes to exercise discretion to strike one or both of defendant's prior serious felony conviction enhancements.
A. Due Process Limits on Witness Identification
"'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.' (People v. Yeoman (2003) 31 Cal.4th 93, 123[ ].)" (People v. Avila (2009) 46 Cal.4th 680, 698 (Avila); see also People v. Ochoa (1998) 19 Cal.4th 353, 412 ["'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; 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 criminal at the time of the crime, the witness's 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 [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable'"] (Ochoa).) "We independently review 'a trial court's ruling that a pretrial identification procedure was not unduly suggestive.'" (Avila, supra, at 698-699.)
1. The manner in which Lagunas identified defendant was not impermissibly suggestive
Single-person show-ups are often criticized for posing a danger of suggestiveness, but they are not categorically prohibited or inherently unfair. (Manson v. Brathwaite (1977) 432 U.S. 98, 104; Ochoa, supra, 19 Cal.4th at 413; People v. Medina (1995) 11 Cal.4th 694, 753; People v. Chavez (2018) 22 Cal.App.5th 663, 674-675.) Instead, a defendant must shoulder the burden of proving law enforcement's use of a field show-up procedure was unduly suggestive under the particular facts presented. (Avila, supra, 46 Cal.4th at 700.)
We believe there is a suggestive element to the identification process as it developed in this case. Lagunas did not make a certain identification of defendant from just the six-pack that included his picture, and she shortly thereafter viewed defendant (and only defendant) in person when she made her identification. We do not believe, however, that what occurred in this case was unduly suggestive for three interrelated reasons.
First, and resolving conflicts in the evidence in the light most favorable to the verdict, Lagunas asked to see potential suspects in person because she found the six-pack photographs inadequate to make a certain identification. The police should not be faulted for acquiescing in Lagunas's request for an in-person viewing opportunity. (See Ochoa, supra, 19 Cal.4th at 413 ["Due process does not forbid the state to provide useful further information in response to a witness's request, for the state is not suggesting anything"].) Second, this is not a case where a witness identified someone other than the defendant in a six-pack and then reversed course during a single-person show-up. Rather, Lagunas testified she believed defendant was the robber when she saw the six-pack but could not be sure just by looking at a photo. The jury was entitled to credit that testimony, and so credited, the in-person show-up here served more of a confirmatory function than a suggestive one. Third, the police gave Lagunas multiple admonitions emphasizing she should not infer anyone shown to her was guilty merely from the fact that the person was being shown to her. That mitigated the suggestiveness in the single-person show-up procedure and, with the other reasons we have highlighted, leaves us convinced there was no undue suggestiveness here. (People v. Garcia (2016) 244 Cal.App.4th 1349, 1360-1361; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 789 ["California and federal courts have rejected the argument that identification procedures are impermissibly suggestive if the defendant is the only person appearing in both a display of photographs and a subsequent lineup"].)
Even looking at the evidence without this lens, the record is still appropriately read to indicate Lagunas, not the police, suggested an in-person show-up. Lagunas testified she told the police, when looking at the six-pack, that she "could recognize him if [she] were to see him in person again." Much like the familiar exclamation by King Henry II regarding Thomas Becket (Shapiro, The Yale Book of Quotations (2006) p. 354 ["Who will deliver me from this turbulent Priest?"]), the police would have naturally interpreted this as a suggestion to arrange an in-person show-up.
2. The identification was sufficiently reliable regardless of any undue suggestion
Putting aside the question of suggestiveness just answered, we are also of the opinion that Lagunas's identification of defendant was reliable considering the totality of the circumstances. Defendant contends otherwise because he believes she was focused on the robber's weapon rather than his appearance, because the robbery was "unexpected," and because the robbery left her experiencing a "high level of emotional stress."
The vast majority of all crimes are unexpected (at least by the victim), so we put no stock in defendant's reliance on expectations as a reason to consider a crime victim's identification unreliable. We focus instead on the other two arguments defendant makes, plus the factors our Supreme Court has identified as relevant to the reliability of an identification notwithstanding any suggestiveness.
Again, they are: the witness's opportunity to view the criminal at the time of the crime, the witness's 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. (Ochoa, supra, 19 Cal.4th at 412.) --------
Lagunas's own testimony undermines defendant's claim that she was too focused on the screwdriver to get a good look at defendant's face. Defendant repeatedly quotes a snippet of Lagunas's testimony ("All I remember is a jacket. I don't remember the rest") to imply Lagunas recalled nothing of defendant's appearance. That is wrong. Lagunas made the statement in answer to a question that specifically asked what the person who robbed her was wearing. At various other points during her testimony, Lagunas was adamant she got a good look at defendant's face notwithstanding her focus on the screwdriver—including when she smiled at defendant before even going up to the ATM—and Lagunas explained she recognized defendant in part because she thought she had seen him around the neighborhood before.
None of the other factors relevant to assessing the totality of circumstances convinces us there was a substantial likelihood of irreparable misidentification that should have prevented the jury from evaluating Lagunas's identification testimony. The robbery occurred in the evening, but because it was still light outside at the time, Lagunas had a clear view. Lagunas's "degree of attention" at the time was high because she noted defendant's presence even before walking up to the ATM. Lagunas was also able to provide an approximate physical description of defendant immediately after the robbery, including identifying a specific item of clothing he was wearing (the brown jacket). Lagunas made her out-of-court identification not long after the robbery (three weeks), she later confirmed her identification in court at both the preliminary hearing and trial, and she was quite certain of the identifications she made in each of these three instances. Defendant is correct that Lagunas remained, in her word, "nervous" about the crime even at the time of trial, but there is nothing about her testimony that suggests her nervousness impacted her ability to identify defendant as the perpetrator. The totality of the circumstances accordingly leaves us convinced Lagunas's identification was sufficiently reliable to warrant allowing the jury to consider whether to believe it.
B. A Senate Bill 1393 Remand Is Warranted
When the trial court sentenced defendant, imposition of a Penal Code section 667, subdivision (a)(1) five-year enhancement for sustaining a prior serious felony conviction (of which defendant had two) was mandatory. (Former Pen. Code, § 1385, subd. (b).) Recent legislation, however, has deleted the provision of Penal Code section 1385 that makes imposition of Penal Code section 667 prior serious felony conviction enhancements mandatory (and related language in Penal Code section 667 itself), thereby permitting trial courts to strike such enhancements when found to be in furtherance of justice. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1, 2.)
Defendant contends Senate Bill 1393 applies retroactively to him, and the Attorney General agrees. Both sides also agree a remand to the trial court is appropriate so the court has an opportunity to consider whether it wishes to strike one or both of the prior serious felony conviction enhancements. We concur a remand is warranted here.
DISPOSITION
The matter is remanded to permit the trial court to determine whether it wishes to exercise its discretion pursuant to Penal Code sections 12022.53, subdivision (h) and 1385, as amended by Senate Bill 1393. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
MOOR, J.