Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA303850, Rand S. Rubin, Judge.
Sally P. Brajevich, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Joshua T. Howard was convicted in a jury trial of second degree robbery and assault with a deadly weapon. The jury also found that he personally used a firearm. In a bifurcated proceeding, the trial court found that he had one prior serious felony conviction. He was sentenced to state prison as a second striker for 27 years.
He appeals contending: "I. Appellant was seated next to the known suspect wearing a jail jumpsuit in the courtroom the first time he was identified; the identification was unduly suggestive. II. There is insufficient evidence that appellant was the second robbery suspect; at 5'7" appellant is not the 6'3" man the victim described. III. It was misconduct for the prosecutor to orchestrate the suggestive identification. IV. Officer Morton's testimony about appellant's arrest in a barbershop with codefendant Hicks on an unrelated case should have been excluded under evidence code section 352. V. All references to the unproven and unrelated gas station shooting should be deleted from the probation report. VI. The suggestive identification procedures combined with the prosecution's overarching culminated in a fundamentally unfair trial."
Shortly after midnight on May 29, 2006, Vanessa Soto was in her car with her infant child and mother-in-law, Maria Jasso. As Soto got out of the car, a man, later positively identified at preliminary hearing and at trial as appellant, pointed a handgun at Jasso. Meanwhile a second robber, who Soto positively identified as Kevin Hicks, took her purse. Soto obtained the license number of the car in which the robbers made their get-away. The police responded and interviewed Soto. Soto claimed that she told the police that one of the robbers was 6' tall and the other robber was 5' 10" or 5' 11". The officer who conducted the interview in the field said that the victim said both robbers were 6' 3'' tall. Appellant is 5' 7''. Hicks had two large tattoos on his neck. Soto did not tell the police that either of the robbers had large tattoos on his neck.
The police traced the license number of the get-away car to Hick's mother. Soto picked Hick's photograph from a six-pack show-up but was unable to identify appellant in another six-pack show-up. Hicks and appellant were arrested at a barbershop based on an unrelated gang shooting at a gas station which occurred on May 22, 2006.
Appellant and Hicks were jointly charged with the gas station shooting and Hicks was also individually charged as one of the two participants in the May 29, 2006 crimes against Soto and Jasso. However, both were in custody and in court sitting next to each other at the preliminary hearing where Soto saw them. She notified the prosecutor that appellant was the robber who wielded the gun on May 29, 2006. As a consequence, appellant was charged with the robbery and assault which form the bases for his convictions and sentence. The charges relating to the gas station shooting were dismissed on the People's motion before the instant trial.
Each of appellant's contentions relating to suggestive identifications procedures must be rejected. First, at no time below did appellant object to his identification at trial as being unduly suggestive or in violation of due process guarantees. Consequently, there is no ruling for us to review and no record supporting the bald claim that the prosecution team "orchestrated" this procedure with the idea that Soto would identify appellant if they could just seat him next to Hicks at the preliminary hearing. The cases are legion indicating that challenges to identifications procedures are waived/forfeited unless there is a timely objected tendered at the trial court level and a ruling thereon. (E.g. People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Samayoa (1997) 15 Cal.4th 795, 827.) We do not read this record as showing that an objection would have been futile.
The present record does not explain why appellant's photo was in the six pack show-up. Perhaps he was a suspect. Perhaps he was not. An evidentiary hearing may have explained this as well as other identification procedures. Error is never presumed and the burden to show it rests on appellant.
It is not unusual for a crime victim to be unable to identify the suspect from a photographic show-up and later be able to identify the suspect in person. We recognize that there is a possibility that placing a robber who has been positively identified with someone who has not been identified as the second robber may be suggestive, but such is not necessarily the case. If, as appellant claims, he could not have been the gun-wielding robber because he was too short, it is not unreasonable for the police/prosecutions to seat appellant next to the known robber because they did not reasonably believe that appellant was the second robber at the time. It is pure speculation that the prosecution "orchestrated" an impermissible and suggestive one person show-up of appellant at a preliminary hearing he was required to attend. It is not the prosecution's fault that Soto was able to make a positive identification and we must credit her testimony that her identification was based upon having seen appellant at the time of the May 29, 2006 crimes. Soto's testimony, standing alone, is sufficient to support the verdicts. Any discrepancy in the description goes to the weight, not the admissibility, of the testimony. The jury was free to either credit or reject Soto's testimony. They credited it.
Similarly, we need not reach the merits of the contention relating to Officer Morton's testimony concerning the joint arrest of appellant and Hicks two weeks after the robbery and assault. Appellant did not object to this testimony and the contention is waived on appeal. (Evid. Code, § 353; People v. Williams (2008) 43 Cal.4th 584, 626.) Even were we to reach the merits, the contention would fail. This would have been a discretionary Evidence Code section 352 determination. This is addressed to the trial court and any ruling must be affirmed on appeal absent a demonstration that the ruling was arbitrary, whimsical or capricious. (E.g. People v. Rodrigues (1994) 8 Cal.4th l060, 1124; see also People v. Coulter (2008) 163 Cal.App.4th 1117, 1119.) Their joint association two weeks later corroborates Soto's testimony that they worked as a robbery team two weeks earlier.
The request to delete information in the probation report, in fact a pre plea report, concerning the gas station shooting must be denied. By not asking for relief in the trial court, the contention is waived on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 234)
Finally, appellant contends that he was deprived of the effective assistance of counsel if we do not reach the merits of his contentions. This claim must also fail. First, although there is a procedural default, with the exception of the probation report recitations, we have reached the merits of the claims. Second, even if we were to fault trial counsel, there is no showing that appellant was prejudiced by the assumed omissions. (Strickland v. Washington (1984) 466 U.S. 668, 694; In re Gay (1998) 19 Cal.4th 771, 826.)
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.