Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 198178
Kline, P.J.
Steven Houston appeals from an order revoking his probation. He contends the trial court abused its discretion because there was insufficient evidence he had violated probation. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on May 5, 2006, with second degree robbery (Pen. Code, § 211), alleged to have been committed while appellant was released on bail in a felony offense (§ 12022.1). Appellant pled guilty on July 3 and, in light of this plea and a plea in another felony case, a second degree burglary, a pending vandalism case was dismissed. Appellant was on misdemeanor probation, and the court indicated that probation would be terminated as unsuccessful at sentencing on August 10.
Further statutory references will be to the Penal Code unless otherwise specified.
Appellant failed to appear for sentencing on August 10 and a bench warrant issued. He was arrested on August 26, 2006. On August 28, the bench warrant was discharged and appellant was ordered to appear for sentencing.
On October 18, at sentencing on the two felony convictions, the court ordered imposition of sentence suspended and granted probation for a period of three years, with conditions including that appellant serve nine months in jail, with credit for 116 days and the remainder to be served in a residential program approved by the court.
On February 20, 2007, the District Attorney moved to revoke appellant’s probation based on appellant’s February 15, 2007, arrest for possession of a controlled substance and a hypodermic needle. On March 9, appellant admitted the violation of probation, waived 135 days of credit and was continued on probation on condition that he serve one year in county jail. It was specified that time could be served in a residential treatment program and, if counselors at the program deemed he would be better served as an outpatient, defense counsel should prepare an order.
On August 1, 2007, the District Attorney filed a motion to revoke probation; appellant admitted the violation on August 3. Probation was modified to add the condition that appellant serve 30 days in county jail.
On October 24, the District Attorney filed another motion to revoke probation based on appellant’s October 22 arrest for petty theft with a prior. After a contested hearing held over several dates between December 28, 2007, and February 15, 2008, the court found appellant in violation of probation. On March 21, the court revoked probation and sentenced appellant to state prison for the middle term of three years, with credit for 184 days of time served.
Appellant filed a timely notice of appeal on May 12, 2008.
STATEMENT OF FACTS
Joselin Payan, the manager of Lavande Spa on Polk Street, testified that at about 2:40 p.m. on October 8, 2007, her front desk staff alerted her that a man who had come into the store seemed suspicious; he was being “really loud” and looked like he was “under the influence of something” because he was “bouncy and moving a lot.” Payan described the man as “really skinny, tall, light skinned,” with a facial piercing and an unusual scar on his left nostril that looked like a cut which had “dried up.” She could not say how tall he was, but asked if he was taller than the six-foot-tall prosecutor, said “perhaps the same height.” She emphasized that the man was “really skinny” and guessed he might be about 180 pounds. She testified that he was about 26 years old and Caucasian, and that she did not see his hair because he was wearing a hat and a jacket. Payan initially testified she could not remember exactly where the man’s facial piercing was, then after referring to the police report, testified that it was below the man’s lower lip, in the center of his chin. She then identified appellant in court as the person she saw in the store.
Pursuant to People v. Green (1979) 95 Cal.App.3d 991, 1002-1003, appellant was not present during this portion of Payan’s testimony, but was able to hear the proceedings.
Subsequently, on cross examination, Payan acknowledged that she had described the man to the police as having dirty blonde hair and a piercing on his lower lip, as well as being white, in his mid 20’s, very thin, with a large scar on his left nostril. She reiterated that she did not recall exactly where the facial piercing was and it could have been the lip or the chin, stating, “I just know he had a facial piercing in that area.” After looking at the police report, Payan acknowledged that she had not been correct when she said the piercing was on appellant’s chin rather than his lower lip. Payan did not recall how much she told the police the suspect weighed; the weight listed in the suspect description in an October 19, 2007, police report is 140 pounds.
At the hearing, as described by defense counsel and the prosecutor, appellant did not have a large scar on his left nostril but had “maybe some acne, a small acne scar,” and had an approximately three-centimeter scar over his left eyebrow. There was no visible piercing on his face, but there was “a growth of hair” where Payan had described the piercing, so the skin could not be seen. Defense counsel asserted there “definitely isn’t any hole in his lower lip” and the prosecutor responded, “I can’t tell.” The court declined to physically examine appellant as it felt would be necessary to determine whether there might be a piercing that had closed, but invited the defense to photograph appellant and submit the photographs for the court to examine. Eighteen photographs of appellant, taken in late January 2008, were subsequently received in evidence.
During the incident, Payan stood by the front desk as a sales associate helped appellant, who said he was shopping for a gift for his girlfriend. He decided on a black Kenneth Cole purse and the sales associate walked with it to the front desk. After standing at the front counter, appellant walked back to a brown bag, picked it up and ran out of the store with it, without paying. A recording from the store’s security cameras showed the sequence of events. Payan testified that appellant had come into the store about 10 minutes before this incident, saying he was looking for a present for his girlfriend, then left. She acknowledged that she had not actually seen the person who came in the first time so could not be sure it was appellant.
Payan testified that, a couple of days after the incident, Police Officer Edison came to the store and showed her two photographs, one of which she identified as the man in the store. A few minutes later, Edison showed her a lineup of six photographs and she again picked appellant’s, the same photograph she had picked from the original two she was shown.
Officers Edison and Papale testified that it was Papale, not Edison, who showed Payan these first photographs.
San Francisco Police Officer Philip Papale testified that he reviewed the surveillance video with other officers who worked in the Polk Street area and, either from discussion or from a book of people who had been arrested on Polk Street in the past, they came up with two suspects, “Polk Street guys” who looked similar to the man in the video. Papale showed photographs of the two, one of them appellant, to Payan, and told her “[t]hese guys may or may not be involved.” She identified appellant in less than five seconds. He was a bit surprised that one of the photographs he picked on a “hunch,” to narrow an investigation among “a lot of... skinny white boys on Polk Street,” was actually identified. Papale acknowledged that the usual procedure for an identification would be to show a witness a six-photograph lineup and that he did not give Payan the admonition about how to view the photographs that would normally be given. He did not write a report about the two-person lineup and did not know what was done with the photographs he used.
San Francisco Police Officer Kirk Edison testified that he prepared a photographic lineup for Payan to look at by taking a photograph of appellant, who had been identified in the surveillance tape by another officer, and having the computer select five other photographs to use with it. He and Papale then showed the six-photograph lineup to Payan. Edison testified that it was Papale, not him, who had earlier shown Payan two photographs, and that he did not know about this at the time and learned about it only at the revocation hearing. When the officers showed Payan the six-person lineup, she immediately selected appellant’s photograph and wrote on it that she was “100 percent sure.” Edison explained that the photograph of appellant showed a ring piercing in his lower lip but, because the other subjects in the lineup did not have piercings, Edison used a marker to cover the piercing and mark the other images so all six images would look similar. The photograph of appellant was a booking photograph that had been taken on February 15, 2007, and indicated the name Michael Sims, which Edison stated was appellant’s alias.
Appellant was arrested on October 22, 2007. The police report states that appellant did not have a lower lip ring when he was arrested but did have his lower lip pierced with a ring at the time of the theft incident and in several of his San Francisco Police Department mug shots.
Terry Zimmerman testified for the defense that he had known appellant on and off for about five years but had seen him more frequently during the last year. He described appellant as a “street kid” and testified that appellant did odd jobs for him and in the last few months he had let appellant stay with him. Appellant did not have any piercings Zimmerman knew of, but Zimmerman thought appellant had had a lip piercing a few years before. Zimmerman remembered seeing appellant with a lip piercing in March or April of 2007 but stopped seeing appellant wear it after about May 2007. Zimmerman took a photograph of appellant on October 1 or 2, which the court received in evidence. He testified that the booking photograph looked like appellant.
Anita Burton had been appellant’s probation officer since about August 1, 2007, but had never met or talked with him. Appellant had been on probation since October 18, 2006. Burton prepared a report for the court dated November 9, 2007, in which she recommended that his probation be modified to require him to serve nine months in Roads to Recovery. In a November 30 report, she recommended that probation be revoked because she felt the probation department had exhausted all means of helping appellant, as he had not reported or provided an address. Burton initially testified that she wrote this report after learning that appellant had been delivered by the sheriff’s department to the Teen Challenge residential substance abuse program in April 2007 but had left before receiving a counselor, but later acknowledged she did not receive the information about Teen Challenge until January 2008. After the November 9 report, however, an assistant district attorney had expressed to Burton his feeling that nine months was a lenient disposition. In a January 4, 2008, report, Burton again recommended a state prison sentence based on appellant’s failure to comply with drug treatment or contact probation.
DISCUSSION
Under Penal Code section 1203.2, subdivision (a), “a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe... that the person has violated any of the conditions of his or her probation....’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 440.) As appellant recognizes, “proof of facts supporting the revocation of probation pursuant to section 1203.2(a) may be made by a preponderance of the evidence.” (Id. at p. 447.) The trial court has “very broad discretion” in determining whether a probationer has violated probation.” (Id. at p. 443.)
Appellant argues the trial court overlooked serious questions about whether he was the person in the Lavande Spa on October 8, 2007. He maintains that Payan’s descriptions of the suspect were “wildly inconsistent” in that she testified at the hearing that she could not see the suspect’s hair because he was wearing a hat, that he was about 180 pounds and that he had a piercing on his chin, but told the police at the time that he had dirty blond hair, was about 140 pounds and had a piercing on his lower lip, and the only consistent feature in her descriptions, that the man had a scar on his nose, was not observable on appellant at the hearing. Appellant also argues that Payan’s in court identification was compromised by the “inherently suggestive” nature of the pretrial investigation, which ignored the normal procedures used to ensure fairness in photographic lineups. In this regard, appellant points out that Papale showed Payan two photographs, did not give her the standard admonition about how to view them, and did not write a report about the lineup or preserve the photographs for evidence.
Appellant’s opening brief asserts that issues regarding identification should have been developed in “greater depth” in the trial court and anticipates these issues being pursued in a petition for writ of habeas corpus claiming ineffective assistance of counsel. No such writ petition has been filed in this court.
At the revocation hearing, defense counsel argued that the court should doubt whether appellant was the person involved in the Lavande Spa incident because appellant did not have the nose scar and facial piercing that were the distinctive identifying features given by Payan and because Payan’s identification was tainted by the use of the two-person lineup followed by use of the same photograph in the six-person lineup. Defense counsel also argued that the similarity among all the photographs showed how many individuals met the same general description, and that it was not clear from the surveillance video that the man in it was appellant. The prosecutor argued the person in the video fit appellant’s physical description and attributes; the video showed how much opportunity Payan had to observe appellant, as he walked within three to five feet of her and she was focused on him the entire time; the photographs of appellant supplied by the defense were inconclusive and if anything supported someone thinking there was a scar on appellant’s nose because of redness there; appellant’s mug shot showed jewelry on his lip, whether a piercing or a clip; the markings on the six photographs in the lineup reflected an effort to avoid the suggestiveness that would have been present if appellant’s photograph showed a lip ring and the others did not; and the two-photograph lineup did not taint the identification because Payan picked one immediately.
The trial court found there was a preponderance of evidence to find appellant in violation of his probation, in particular noting that the February 2007 mug shot and Zimmerman’s testimony demonstrated there was a point when appellant had a piercing.
We find no abuse of discretion. Payan’s descriptions of the suspect were not as divergent as appellant asserts. She was consistent in her report to the police and her testimony in saying the suspect was a very tall, skinny, white man in his mid-twenties. Although her hearing estimate of his weight as about 180 pounds differed from her report to the police of 140 pounds, her testimony was expressly not precise: Asked how much she thought he weighed, she said, “I have no idea. He is really skinny, really skinny. I don’t know, maybe, like, 180 or so.” While Payan testified at one point during the hearing that the facial piercing was on appellant’s chin rather than his lip, she acknowledged this was a mistake and was clear throughout the hearing that she did not recall the exact location of the piercing, only its general area.
Contrary to appellant’s characterization, there was nothing “vague” about Payan’s in-court identification, and the evidence showed she identified appellant immediately when the police showed her the photographs. To the extent appellant is arguing the pretrial photographic identifications were impermissibly suggestive, his contention must be rejected. Even a “ ‘ “single person showup” is not inherently unfair.’ (People v. Floyd (1970) 1 Cal.3d 694, 714.)” (People v. Ochoa (1998) 19 Cal.4th 353, 413.) “[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. Slutts (1968) 259 Cal.App.2d 886,] 891.)” (People v. Ochoa, supra, 19 Cal.4th at p. 413.) When Officer Papale showed Payan the two photographs, he told her the men might or might not have been involved in the theft. Appellant has not demonstrated that anything the police did with respect to the identifications improperly suggested the identity of the person they suspected.
The record reflects that the trial court carefully considered the issues surrounding appellant’s identification. We have no basis for finding an abuse of discretion in its determination that a preponderance of the evidence demonstrated appellant violated his probation.
None of the exhibits were made part of the record on appeal and efforts to locate them have yielded only a copy of the six-person photo lineup and a copy of appellant’s mugshot.
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.