Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County, Michael A. Knish, Judge, Super. Ct. No. FVA021947.
BENKE, J.
James Earl Payne was convicted of four counts of second degree robbery, two counts of second degree attempted robbery and one count of being an ex-felon in possession of a firearm. It was found true as to one count of robbery that Payne discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c), and that as to the remaining counts of robbery and attempted robbery, he used a firearm within the meaning of section 12022.53, subdivision (b). It was also found true he suffered five prior "strike" convictions within the meaning of section 667, subdivisions (b) through (i), and one prior conviction within the meaning of section 667, subdivision (a)(1). Payne was sentenced to a determinate prison term of 100 years and a consecutive indeterminate term of 153 years to life. He appeals, arguing the trial court abused its discretion in denying his motion for a live lineup and erred in imposing consecutive sentences.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
At approximately 1:45 a.m. on May 12, 2004, Terry Kox was standing outside the bar he managed as it was closing for the evening. Appellant, who Kox saw at the establishment on numerous occasions, walked up and told Kox his girlfriend was still inside. Kox told appellant he would look for her. As he entered the bar, appellant followed, drew a gun, pointed it up and fired.
Appellant ordered Kox and the five remaining persons in the bar to get down and give him their money. Appellant pointed his gun at Kox and told him to get on the floor. Appellant pointed his gun at Steve Koumparis and told him to get down. When appellant looked away, Koumparis left the bar, called police and reported the robbery.
As he went to the floor, Kox pulled out his wallet and placed it on the ground. Appellant looked in the wallet, found nothing, placed his gun at the back of Kox's head and pulled from his front pocket five $50 bills and a wad of approximately $200 wrapped in a quarter-inch-wide blue or lavender rubber band.
Appellant then went to Kimberly Barnes and Bobby Aguilar who were on the floor next to each other. Barnes had placed $20 and her cigarettes on the ground between herself and Aguilar. Appellant took the money and told Barnes, who was on her stomach, to roll over. He placed his gun against her forehead and told her to empty her pockets. She told appellant her pockets were empty and turned them inside out to demonstrate the fact. When appellant demand his money, Aguilar, who hid his property, told appellant he had nothing except what was on the ground next to him.
Appellant then approached Salvador Avila. Avila placed his keys, cell phone and a dollar bill on the ground next to him. Appellant went through Avila's pockets and found a $5 bill. Appellant took both bills.
Appellant then confronted Amber Thun. Thun, a waitress, placed her tip money on the floor next to her. Appellant placed his gun to Thun's head and took her money.
Appellant went to the back door of the bar, opened it and looked outside. He then closed the door, tossed his gun into another room, reopened the back door, hit an alarm button, yelled that someone was holding up the bar and then ran. When persons from the bar came outside and told security guards appellant had left without his gun, one of guards ran after him. The security guard never lost sight of appellant and assisted an officer in taking him into custody in the backyard of a house near the bar. Appellant was apprehended after refusing commands by a police officer to stop.
The victims and security guards were individually taken to the location where appellant was detained. All the witnesses identified appellant as the robber except Koumparis. Koumparis stated appellant had the same build as the robber but he could not say he had the same face. Although repeatedly told not to do so, appellant made faces during the show-ups. At trial, Koumparis identified appellant as the robber. Several of the victims and one of the security guards told officers they saw appellant inside or around the bar that evening.
When searched at the jail, appellant had in his possession phones, keys and a wad of money held together with a purple rubber band. After his arrest, appellant stated to police he was outside the bar when he heard "pops." He looked and saw a man firing shots in the bar. He ran when he heard a police helicopter overhead. Appellant stated he was aware of murders in the area and feared for his safety. He stated that as he ran he heard more gunshots. Appellant stated he had $165 in his possession, in fact he had $281. Appellant told officers the police department could keep the money but the other items were his and he could prove it. Kox identified the wad money as that taken from him during the robbery.
No fingerprints could be identified on the gun left by appellant at the bar.
B. Defense Case
The defense presented no witnesses but argued the victims and witnesses mistakenly identified appellant as the robber. Defense counsel noted it was crowded outside the bar at the time of the robbery. Counsel suggested appellant did exit the bar after the robbery and ran out of fear. Because he was running, the police and security guards simply assumed he was the robber. Counsel noted the accounts of the robbery and the description of the robber were not completely consistent, no test was done to see if appellant recently fired a gun and the money taken from appellant did not match the money taken in the robbery. Counsel argued there was a reasonable doubt that appellant committed the crimes.
DISCUSSION
A. Motion for Lineup
Appellant argues the trial court abused its discretion when it denied his motion for a lineup.
1. Law
In Evans v. Superior Court (1974) 11 Cal.3d 617, 625, the court stated: "[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Fn. omitted.) Although the possibility of a mistaken identification exists in any case, a reasonable likelihood of mistaken identification must exist to require a physical lineup. (People v. Abdel-Malak (1986) 186 Cal.App.3d 359, 369.)
The questions as to whether eyewitness identification is a material issue and whether fairness requires a lineup necessarily rest within the broad discretion of the trial court. (Evans v. Superior Court, supra, 11 Cal.3d at p. 625.)
2. Discussion
Prior to the preliminary hearing in August 2004, appellant requested a lineup. He argued eyewitness identification was a material issue in the case and there existed a reasonable likelihood of mistaken identification. He noted there was some discrepancy in the description of the robber given by the witnesses. He observed that some of the witnesses saw appellant in the bar earlier in the evening and suggested this resulted in an unconscious transfer resulting in their mistaken identification of him as the man who robbed them. He noted the lighting in the bar was poor and the witnesses observed the robbery under stressful conditions.
The prosecution opposed the motion, stating there was no showing of a reasonable likelihood of mistaken identification. By a detailed declaration the prosecutor noted that six witnesses identified appellant as the robber shortly after the crime. He also noted the witnesses had ample time to observe the robber, and they provided similar descriptions of the robber that matched appellant's appearance. Two witnesses recognized appellant as a regular customer of the bar. A victim's money taken by the robber was wrapped in a distinctively colored rubber band. He also noted that money wrapped in that band was found in appellant's possession when he was apprehended soon after the crime.
The trial court without comment denied the motion for a lineup.
The trial court did not abuse its discretion in denying appellant's motion for a lineup. Given the apparent lack of any other defense, eyewitness identification was a material issue in the case. However, the trial court could reasonably conclude there existed no reasonable likelihood of a mistaken identification. The witnesses had a lengthy opportunity to observe the robber. Some of the witnesses recognized appellant as a regular customer of the bar. Appellant was apprehended near the bar soon after the crime. A wad of money wrapped in a distinctive rubber band like that taken from one of the victims was found in appellant possession. Soon after the crime, six witnesses identified appellant as the robber. There is no evidence the curbside showups at which those identifications were made were impermissibly suggestive.
The trial court acted properly in denying the motion for a lineup.
B. Sentencing
Appellant argues the trial court erred when it used the fact he was armed during the crimes and had a prior serious felony conviction to both impose enhancements and to require he serve consecutive sentences.
1. Background
Appellant was convicted of four counts of second degree robbery, two counts of attempted second degree robbery and being a felon in possession of a firearm. As to one of the robbery convictions, it was found true appellant discharged a firearm within the meaning of section 12022.53, subdivision (c). As to the remaining robbery and attempted robbery convictions, it was found true appellant used a firearm within the meaning of section 12022.53, subdivision (b). It was also found true appellant suffered five strike priors within the meaning of section 667, subdivisions (b) through (i), and one serious felony prior within the meaning of section 667, subdivision (a)(1).
As to one of the robbery counts, the trial court imposed pursuant to the "three strikes" law an indeterminate term of 28 years to life plus a determinate term of 25 years. As to five remaining robbery and attempted robbery convictions, the trial court imposed pursuant to the three strikes law an indeterminate term of 25 years to life plus determinate terms of 15 years. The sentence for the conviction of being a felon in possession of a firearm was stayed pursuant to section 654.
The trial court ordered all terms on the robbery and attempted robbery convictions served consecutively for a total term of 253 years. In stating its reasons for imposing consecutive sentences, the trial court reviewed the criteria for the imposition of consecutive terms described in California Rules of Court, rule 4.425. Stating the decision was a difficult one, the court noted the first factor is whether the crimes and their objectives were predominantly independent of each other. The court noted all the robberies were part of a single criminal event but also noted there were separate victims towards whom appellant took separate action. The court concluded, however, that the fact the crimes were all part of a single transaction was a factor supporting the imposition of concurrent terms.
The court noted the second factor described in rule 4.425 was whether the crime involved separate acts of violence or threats of violence. The court noted the serious threatening acts directed by appellant at individual victims and concluded this factor weighed heavily in favor of consecutive sentencing.
The court observed the third factor the California Rules of Court noted as relevant was whether the crimes were committed at different times or places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. The court noted the crimes were committed at the same time in the same place and the factor of temporal and physical proximity weighed in favor of concurrent sentencing.
The court noted the California Rules of Court also allowed the use of any other aggravating or mitigating factor in deciding to impose a consecutive or concurrent sentence. The court noted appellant served a 15-year prison term for robbery. The court also noted a true finding against appellant in juvenile court on an allegation of a "takeover" robbery. The court believed the conviction and true finding and appellant's poor performance on probation and parole were significant factors in aggravation.
The court likewise noted the crimes involved great violence and the threat of violence, appellant used a gun, the victims were vulnerable, were not armed and were not able to defend themselves. Appellant made death threats. The nature of the crimes indicated planning, sophistication or professionalism. The court also noted appellant's convictions were of increasing seriousness and that he was on parole when the crimes were committed.
While saying it was a "close call," the court ordered the sentences on the six robbery and attempted robbery counts served consecutively.
2. Discussion
Citing section 1170.1, subdivision (d), appellant argues that in imposing consecutive terms on counts sentenced under the three strikes law, the trial court was required by California Rules of Court, rule 4.401 et seq., to give reasons for that sentencing choice and to not use as reasons factors employed to otherwise enhance his sentence. (Cal. Rules of Court, rule 4.425(b)(2).) Appellant argues the trial court improperly used the fact he used a firearm in the commission of the crimes and had prior serious felony convictions to both enhance his term (§§ 12022.53, subd. (b)(c) [firearm use] and 667, subdivision (a)(1) [prior serious felony conviction]) and to impose consecutive sentences.
There is some confusion concerning the application of section 1170.1, subdivision (d), to the imposition of consecutive indeterminate terms. (See People v. Black (2005) 35 Cal.4th 1238, 1262, fn. 17; People v. Murray (1990) 225 Cal.App.3d 734, 750.) It is unnecessary we address that confusion because we conclude that even if the dual use of facts prohibition is applicable here, it is not reasonably probable the trial court would have imposed a more favorable sentence absent the error. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The trial court stated the decision to impose concurrent or consecutive terms was a close one. Apparently, the trial court reached this conclusion because while the crimes were planned and committed in a callous and threatening manner against multiple individuals, they all occurred at one time and at one place. Appellant contends the trial court erred in citing as some of the factors tilting the balance appellant's use of a firearm and in several forms the fact of his prior serious felony convictions.
It would certainly be an improper double use of facts to cite the mere fact of firearm use and prior convictions to both impose enhancements and order consecutive sentencing. Here, however, the issue is more complex. It appears the trial court was concerned not simply with the fact of appellant's prior convictions and true findings as general character factors but also with the fact the prior crimes were very similar to the present crimes and tended to negate any argument that appellant's conduct indicated "a single period of aberrant behavior." (See Cal. Rules of Court, rule 4.425(a)(3).)
Similarly, while it was error to cite appellant's firearm use as a factor in support of consecutive sentencing having used it as the basis for an enhancement, the fact of firearm use was only one element in the trial court's conclusion that the crimes were planned and carried out in a callous and threatening manner.
Thus, we conclude that even if the court did err in employing in part as reasons for the imposition of consecutive sentences facts previously used to impose enhancement, it is not reasonably probable that absent the error appellant would have been sentenced more favorably.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.