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People v. Rutledge

California Court of Appeals, First District, Fifth Division
Jul 24, 2008
No. A117967 (Cal. Ct. App. Jul. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EUGENE DARRELL RUTLEDGE, Defendant and Appellant. A117967 California Court of Appeal, First District, Fifth Division July 24, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 154409.

Jones, P.J.

Appellant Eugene Darrell Rutledge (appellant) appeals from a judgment of conviction entered after a jury found him guilty of nine counts of second degree robbery (Pen. Code, § 211) and one count of attempted second degree robbery (§§ 211/664). Appellant argues the trial court erred in admitting and considering testimony and in-court identifications that were tainted by an “impermissibly suggestive” lineup.

Unless otherwise noted, all further statutory references are to the Penal Code.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The robberies and the attempted robbery occurred over several weeks at several grocery stores and a fast food restaurant in Oakland.

The Smart & Final Robberies

At 7:45 p.m. on January 10, 2006, Bernice Lek was counting money in a cash register at a Smart & Final store in Oakland. Appellant approached her, put a box of dog food on the counter, and said, “Give me all your fucking money.” He was wearing a beanie-style cap and his shoulder-length hair was braided. Lek had seen appellant in the store on at least two previous occasions. She assumed he was kidding, so she giggled. In response, appellant — who was standing right next to Lek — said, “I’m not fucking with you. Drop the money, back up and don’t say shit.” Lek dropped the money and backed away from appellant. Appellant then took the money and walked out of the store. The store’s surveillance system recorded the robbery and fingerprints from the dog food box matched appellant’s. Lek identified appellant at a March 10, 2006 physical lineup (the lineup) and at trial.

Appellant returned to the Smart & Final store on February 3, 2006 at 5:50 p.m. Karl Cuyugan was ringing up customers at a cash register when appellant approached him and said something to the effect of, “This is a robbery, don’t do anything stupid.” Cuyugan opened the cash register and backed away. At that point, two other employees — Alfonso Quintor and Delbert Dunn — approached Cuyugan’s register. Appellant put the money in his pocket and hit Dunn. Cuyugan watched as appellant, Quintor, and Dunn got into a fight. Appellant eventually ran out of the store. Cuyugan and Quintor identified appellant at the lineup and at trial.

The Albertson’s Attempted Robbery

On the afternoon of January 31, 2006, Tracey Rutledge — a cashier at an Albertson’s grocery store in Oakland — was robbed by appellant. As Tracey finished ringing up a customer, appellant came up behind her and said something like, “Open the f’ing drawer and give me the money.” Appellant repeated his demand twice. When Tracey could not open the cash register, appellant said, “get it open. I’m not playing, get it open.” Tracey eventually opened the cash register and ran away. A surveillance camera recorded the robbery. Tracey identified appellant at the lineup and during trial.

Tracey Rutledge is not related to appellant. For convenience and clarity, we refer to Tracey Rutledge by her first name.

The Jack-in-the-Box Robberies

On January 25, 2006, Agustin Sanabria was managing a Jack-in-the-Box restaurant in Oakland. Some time between 5:30 and 6:30 p.m., appellant came into the restaurant, jumped over the front counter, and said “Open the fucking registers” several times in an angry voice. Appellant was wearing a beanie and a black jacket. According to Sanabria, appellant “got angrier” and started slamming his hands on the counter. Sanabria opened the cash register and appellant grabbed money out of it. Appellant then went to the cash register at the drive-thru window, took money out of it, and fled. The robbery was captured on the restaurant’s surveillance video. Sanabria identified appellant at the lineup and at trial.

Appellant returned to the same Jack-in-the-Box on the morning of February 7, 2006. Pablo Vargas was working in the drive-thru window when appellant came inside the restaurant and yelled, “Open the register.” Appellant was three feet from Vargas. Vargas opened the register; appellant took the money and ran out of the restaurant. This robbery was also recorded by the restaurant’s surveillance camera. Vargas identified appellant at trial and at the lineup.

The FoodMaxx Robberies

On January 31, 2006, Dalila Carrillo and Beverly Greenly were working as cashiers at a FoodMaxx grocery store in Oakland. At 9:15 p.m., appellant came up to Greenly and asked her whether the store sold stockings or panty hose. Greenly responded that the store did not carry either item. Appellant then approached Carrillo and asked for her name. She told him her name; then he “looked at [her] directly” and said, “Dalila, do me a favor, open the register and give me all the money.” According to Greenly, appellant was “right up on [Carrillo], right behind her” when he demanded the money. Greenly watched appellant “trotting” out of the store. Carrillo and Greenly identified appellant at the lineup and at trial.

At 11:00 p.m. on February 2, 2006, Lanika Scott was working as a cashier at the same FoodMaxx store. While she spoke with a customer, appellant came up behind her and said, “Don’t play with me, just give me the money.” Appellant was “really close” to Scott; she noticed that he was wearing a dark jacket with a hood and pajama-type pants. He had shoulder-length cornrows in his hair. Scott opened the cash register and moved away from it; appellant took the money out and then left the store. Scott identified appellant at the lineup and at trial.

On the evening of February 2, 2006, Andrew Martinez — a loss prevention agent at FoodMaxx — was reviewing a surveillance video from the January 31, 2006 robbery. The person in the video had tightly-braided hair and a thin mustache. Martinez was also monitoring the store’s surveillance cameras. As he was watching the store’s surveillance cameras, he saw appellant rob Scott. Martinez thought that appellant looked similar to the person who robbed the store on January 31, 2006. Martinez identified appellant at the lineup and at trial.

The Lineup and the Ruling Admitting the Eyewitness Identifications

On March 10, 2006, two days after appellant’s arrest, approximately 24 witnesses viewed him in a six-man lineup at the North County Jail in Oakland. We have reviewed the videotape of the lineup, which was admitted as an exhibit at trial.

Both appellant and the “fillers” in the lineup were African American. All of the participants had similar facial hair. Appellant wore his hair in a short hairstyle resembling cornrows; at the nape of his neck, a single braid — approximately one inch in length — protruded. One filler had a shaved head and the remaining fillers wore their hair in short, natural hairstyles.

The 20-minute lineup was comprised of three distinct parts. During the first part, each participant moved from his place in line, stood at the center of the room, and faced the mirror separating the witnesses from the participants. While standing at the center of the room, each participant made a slow 360-degree turn, making quarter turns to enable the witnesses to see the participant’s head from several different angles. Then each participant put on a hooded jacket that the police found at appellant’s residence and faced the center of the room for a few moments. Appellant went first. He kept a straight face while he stood at the center of the room, turned around, and put on the jacket. Two other fillers (Nos. 2 & 6) were also composed as they performed this routine at the center of the room. The three remaining fillers (Nos. 3, 4, & 5) smiled as they stood at the center of the room, performed their 360-degree turn, and put on the jacket. These fillers also smirked while the other lineup participants were in the front of the room. At one point during this first phase, Filler No. 4 joked with Filler No. 3, pulling Filler No. 3’s hair and laughing. A sheriff’s deputy then told the fillers to “quit joking around.”

During the second portion of the lineup, each participant walked the length of the room and then went to the front of the room and said, “Give me the fucking money” three times. Then each participant said, “Open the register” three times. Appellant went first. He — and all of the fillers —laughed as he said, “Give me the fucking money” the first time. As he repeated the phrase for the third time, appellant rolled his eyes. Like appellant, Filler Nos. 2 and 3 laughed when they said, “Give me the fucking money” the first time. Filler Nos. 3, 4, and 5 smiled while the other participants recited their lines. The last filler, Filler No. 6, lost his composure only when he said “Give me the fucking money” for the final time. During the third and final portion of the lineup, all of the participants moved to the front of the room and faced the mirror. With the exception of Filler No. 4, each participant, including appellant, was composed.

At a pretrial proceeding, appellant moved to suppress evidence from the lineup and any in court identifications resulting from that lineup. Appellant claimed the lineup was impermissibly suggestive because he was: (1) serious during the lineup and the rest of the lineup participants were “engaged in childish behavior;” (2) the only person in the lineup who wore braids in his hair; and (3) older than the rest of the lineup participants. After a lengthy hearing, the court denied the motion. The court explained, “I reviewed the lineup and I watched the video . . . a couple of times — and I think that the structure of the lineup was fair. I think there was undue humor and snickering by other participants, but that was not the fault of law enforcement[,] . . . nor did it in any way point to [appellant] as being the one person who didn’t participate, and therefore I do not feel that the lineup was . . . suggestive in the slightest. [¶] As this point I do not think that any in-court identifications were the product of any impermissible suggestions by law enforcement either before they arrived at the lineup or the procedures followed during the lineup.”

The jury convicted appellant of nine counts of robbery and one count of attempted robbery. A jury also determined that his prior conviction allegations were true and the court sentenced him to 20 years and 4 months in state prison.

DISCUSSION

On appeal, appellant renews his contention that the lineup was impermissibly suggestive and that the resulting eyewitness identifications were unreliable. Specifically, appellant claims that his “serious” behavior during the lineup and his distinctive hairstyle caused him to stand out from the rest of the lineup participants and created a substantial likelihood that he would be misidentified.

“[W]e independently review the trial court’s ruling regarding whether . . . a pretrial identification procedure was unduly suggestive.” (People v. Gonzalez (2006) 38 Cal.4th 932, 942 [applying de novo standard of review to determine whether an identification procedure was unduly suggestive]; People v. Kennedy (2005) 36 Cal.4th 595, 608-609 [same].) To determine whether a pretrial identification procedure violates a defendant’s right to due process, we consider: (1) “whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances. . . .” (Kennedy, supra, 36 Cal.4th at p. 608, citing People v. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of demonstrating the identification procedure violates due process. (Cunningham, supra, at p. 989; see also People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [the “[d]efendant bears the burden of showing unfairness as a demonstrable reality, not just speculation”].)

1. The Lineup Was Not Unduly Suggestive

We first consider appellant’s claim that the “misbehavior of the lineup fillers rendered the identification procedure [] impermissibly suggestive.” Appellant correctly notes that “‘[t]he question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.’” (Cunningham, supra, 25 Cal.4th at p. 990.) As we discuss below, the answer is no. The behavior of the fillers — while childish and somewhat distracting — did not cause appellant to stand out in such a way that would suggest to the witnesses that they should identify him as the perpetrator of the crimes.

There is no dispute that several of the fillers smiled and laughed during the first phase of the lineup. As noted above, Filler Nos. 3, 4, and 5 smiled and smirked; Filler No. 4 tickled Filler No. 3’s head and laughed. Appellant remained serious during the first part of the lineup, but his serious behavior did not necessarily cause him to stand out, because Filler Nos. 2 and 6 were also composed during the first portion of the lineup. And with the exception of Filler No. 4, all of the lineup participants were serious during the final portion of the lineup.

We are not persuaded by appellant’s repeated contention that he was the only “serious” person in the lineup. As noted above, several of the fillers were composed during the lineup. Moreover, during the second portion of the lineup — when the participants were asked to repeat the phrases “Give me the fucking money” and “Open the register” — appellant himself laughed as he said, “Give me the fucking money.” And he rolled his eyes as he repeated that phrase for the third time. By laughing and rolling his eyes during this portion of the lineup, appellant engaged in the very “jocular behavior” he complains caused him to stand out from the rest of the lineup participants. And because appellant engaged in this behavior, he did not stand out from the other participants. As a result, appellant has failed to demonstrate that the conduct of the lineup participants rendered the lineup impermissibly suggestive.

Next, we consider appellant’s contention that the lineup was impermissibly suggestive because “he was also the only one [in the lineup] with his hair in braids or cornrows.” We disagree. It is well-settled that “‘there is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance.’ [Citations.]” (People v. Blair (1979) 25 Cal.3d 640, 661; People v. Wimberly (1992) 5 Cal.App.4th 773, 790; People v. Wash (1993) 6 Cal.4th 215, 245, fn. 11.) Moreover, “[s]light differences in hair color or style” do not render a “photographic identification procedure . . . unduly suggestive.” (People v. Holt (1972) 28 Cal.App.4th 343, 350, disapproved on another point in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, fn. 6.)

Wash, supra, 6 Cal.4th at page 245, is instructive. There, the defendant challenged a photo lineup; he claimed, among other things, that all of the photographs except his depicted men with straight or stringy blond hair. (Id. at p. 245, fn. 11.) Our high court rejected this claim and explained, “[o]ur review of the lineup does not corroborate defendant’s claim. All of the men depicted in the photographs are White; all have long hair in various shades from blond to brown; and all have beards. Defendant’s photograph does not stand out from the others.” (Ibid.) The same is true here. All of the men in the lineup were African American and they had similar facial hair. And, with the exception of one of the fillers (who had a shaved head) all of the participants had hair of the same color and length. The lineup is not unduly suggestive merely because of the “slight difference” between appellant’s hairstyle and those of the fillers.

Appellant’s reliance on People v. Caruso (1968) 68 Cal.2d 183, 187-188, is misplaced. In that case, the California Supreme Court held that a physical lineup was “‘unnecessarily suggestive’” because none of the lineup participants physically resembled the defendant. There, the defendant, who was six feet tall, weighed 238 pounds, and had a dark complexion and wavy hair, was placed in a lineup with “other lineup participants [who] did not physically resemble [him]. They were not his size, not one had his dark complexion, and none had dark wavy hair.” (Id. at p. 187, fn. omitted.) Caruso is distinguishable because fillers here were roughly the same size as appellant and had the same skin color. Four of the five fillers had closely cropped natural hairstyles and all participants, including appellant, wore the same clothing. Unlike the lineup participants in Caruso, the participants here physically resembled appellant. As a result, the fact that appellant had a braid in his hair, by itself, does not render the lineup unduly suggestive.

Like several courts before us, we conclude that the lineup was not unduly suggestive merely because appellant styled his hair slightly differently than the rest of the lineup participants. (People v. Yeoman (2003) 31 Cal.4th 93, 125 & fn. 6 [photo lineup was not unduly suggestive where four men had light red hair and one man had grey hair]; Cunningham, supra, 25 Cal.4th at p. 990 [photo lineup was not unduly suggestive where several — but not all — of the men had “a hairstyle similar to that of defendant”]; see also People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096 [rejecting defendant’s complaint that the lineup was impermissibly suggestive merely because the beards of the other lineup participants were thicker than his]; People v. Johnson (1992) 3 Cal.4th 1183, 1217 [minor differences in facial hair among photo lineup participants did not render lineup unduly suggestive].)

2. The Identifications Were Reliable Under the Totality of the Circumstances

Even if appellant had met his burden of establishing that the lineup here was impermissibly suggestive, we would conclude that the witnesses’ in-court identifications were nevertheless reliable under the totality of the circumstances. (Cunningham, supra, 25 Cal.4th at p. 989.) The totality of the circumstances includes the witness’s opportunity to view the suspect during the commission of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty as to the identification, and the lapse of time between the commission of the crime and the identification. (Ibid.)

Because appellant has failed to establish that the lineup was unduly suggestive, we are not obligated to reach the question of “whether the identification was nevertheless reliable under the totality of the circumstances. . . .” (Cunningham, supra, 25 Cal.4th at p. 989; see also People v. Ochoa (1998) 19 Cal.4th 353, 412.)

Here, all of the witnesses had a sufficient opportunity to observe appellant during the robberies. For example, during the January 10, 2006 robbery at Smart & Final, appellant stood right next to Lek, who had seen appellant in the store at least twice before the robbery. Cuyugan, the victim of the second Smart & Final robbery, observed appellant during the robbery and after the robbery when appellant got into a fight with Cuyugan’s co-workers. The victims in the Jack-in-the-Box robberies also had ample opportunity to study appellant. Sanabria watched appellant jump over the front counter, slam his hands on the counter, and yell. And Vargas was just a few feet from appellant when appellant robbed him.

Tracey, the victim in the Albertson’s incident, was close to appellant when he robbed her and she had a relatively lengthy interaction with him because she had difficulty opening the cash register. Carrillo and Greenly, the victims in the first FoodMaxx robbery, had sufficient time to observe appellant because he spoke with them before the robbery and stood “right behind” Carrillo when he robbed her. Finally, Scott, the victim in the second FoodMaxx robbery, was “really close” to appellant when he robbed her. All of these victims — who saw appellant in well-lit stores and restaurants — had a sufficient opportunity to observe appellant. They were crime victims, not mere “casual observer[s].” (See People v. Arias (1996) 13 Cal.4th 92, 168-169.)

The lapse in time between the robberies and the lineup does not diminish the reliability of the identifications. The lineup occurred between one and two months after the commission of the robberies. This is not so lengthy that the witnesses were unable to remember the salient features of appellant’s appearance. (Neil v. Biggers (1972) 409 U.S. 188, 201 [seven-month lapse, by itself, did not render identification unreliable]; Arias, supra, 13 Cal.4th at pp. 168-169 [10-month time lapse between crime and lineup weighed against reliability “to some degree” but was not sufficient to render identification unreliable].) Finally, all of the witnesses were certain of their identification of appellant, and all of them identified him at trial.

DISPOSITION

The judgment is affirmed.

We concur: Needham, J., Reardon, J.


Summaries of

People v. Rutledge

California Court of Appeals, First District, Fifth Division
Jul 24, 2008
No. A117967 (Cal. Ct. App. Jul. 24, 2008)
Case details for

People v. Rutledge

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EUGENE DARRELL RUTLEDGE…

Court:California Court of Appeals, First District, Fifth Division

Date published: Jul 24, 2008

Citations

No. A117967 (Cal. Ct. App. Jul. 24, 2008)