Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F11017
RAYE, J.Defendant Paul Richard Sanchez was found guilty of two counts of robbery (Pen. Code, § 211), three counts of attempted robbery (§§ 664, 211), and one count of assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found true the allegation that defendant personally used a knife during the commission of several of the offenses. The court found defendant had five prior “strike” convictions and sentenced him to an aggregate term of 77 years to life in state prison.
All further statutory references are to the Penal Code.
On appeal, defendant contends the court erred by (1) denying his Marsden motion, and (2) denying his motion to exclude field and all subsequent identifications made by two of the witnesses. We shall affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
On September 6, 2005, defendant, wearing a plastic nose and fake glasses, walked into a Check Into Cash store on Greenback Lane in Orangevale and robbed the store manager at knifepoint. The manager recognized defendant as a customer who had been in the week before. After looking through the store’s new customer files, she found defendant’s driver’s license picture and identified him as the robber.
At about 9:00 a.m. on December 17, 2006, Tina Oscar was performing opening duties at the Taco Bell restaurant on Madison and Main in Orangevale, where she worked as an assistant manager. Two other employees, one named Rebecca Applegate, were also working that morning. Sitting in the office, Oscar suddenly felt defendant next to her. He said, “Give me your money. This is a robbery.” Oscar thought defendant was joking, but he said again, “Give me your money,” then pulled her out of the chair and poked something into her side. Thinking it could be a gun, Oscar complied. She took her keys from her pocket and defendant walked her over to the safe. Oscar opened the safe, reached in, and pulled out a bag containing over $200 in cash, which defendant took. Oscar also grabbed some customer ATM cards from the safe; defendant tried to snatch them from her hand and got at least one. Defendant then took Oscar to the break room, sat her down in a chair, and told her, “Don’t move.” Oscar noticed defendant was wearing a black leather jacket, blue jeans, and a black and white top. She later told police she could not see defendant’s face because he had a beanie pulled over it, but that he was about six feet tall, weighed approximately 200 pounds, and was “well proportioned.”
Defendant walked toward the front of the restaurant, leaving Oscar in the break room. Oscar got up and pushed the panic button located underneath the registers. The 911 dispatcher called the store and spoke with Oscar, who described defendant.
Oscar and Applegate both viewed the video surveillance tape of the incident, which showed the perpetrator wearing blue jeans, a black leather jacket, and a white beanie. Both witnesses confirmed that the images on the videotape were consistent with the events that occurred the morning of the robbery. Applegate later identified defendant at trial.
On the morning of December 19, 2006, Mayari Alcala was working at Arby’s restaurant on Madison Avenue in Sacramento. Defendant entered the restaurant wearing a blue hooded sweatshirt, a dark blue down vest, blue jeans, and white shoes and asked to use the restroom. Several minutes later, defendant came up behind Alcala, held a serrated kitchen knife to her stomach and said, “I will hurt you.” Although defendant wore sunglasses and a black beanie on his head under the hood of his sweatshirt, Alcala could make out his nose, mouth, and chin.
Alcala elbowed defendant, “went to the ground,” and started kicking at defendant. Defendant stabbed at Alcala with the knife, nicking her left wrist. He grabbed Alcala’s ankle and tried to drag her toward the back of the restaurant. Defendant then went behind the counter and grabbed two other employees, threatening them with the knife and demanding, “Give me the money, or I will hurt you.” Defendant then came toward Alcala, who got up and ran out of the restaurant to the Kentucky Fried Chicken restaurant next door, calling for someone to dial 911.
Gurpal Chahal, who was also working at Arby’s that morning, saw defendant enter the restaurant and ask to use the bathroom. A short time later, she heard screaming and saw defendant, who was wearing a black mask and gloves, grab Alcala and hold her at knifepoint. Defendant let Alcala go and moved behind the counter where Chahal and another employee, Lili Rosales, were standing. He grabbed Chahal and Rosales, holding the knife in front of them, and forced them toward the safe in the office. Defendant asked Chahal for money, but she responded, “I don’t know about money.” Defendant tried to open the safe but was unable to. He saw Alcala run out of the restaurant and followed her outside.
Lisa Kaysinger, who was driving by Arby’s, saw Alcala run from the restaurant and, seconds later, saw defendant run out wearing a light-colored hooded sweatshirt and something dark over his face. He was carrying something “pointy.” Defendant got into a white Ford Mustang and pulled into traffic right in front of Kaysinger. Kaysinger watched as he took off his sweatshirt and removed his mask; she then called 911 and gave the dispatcher the license plate number of the white Mustang.
At the time of the incident, Sacramento County Sheriff’s Deputy Steve Fisher was on routine patrol in the area when he noticed a car behind him honking its horn repeatedly. Fisher pulled over and the driver ran up to his patrol car, telling Fisher he had just seen a white male coming out of Arby’s, pulling off a ski mask, and that the man was in a white Ford Mustang convertible headed west on Madison Avenue. Within minutes, Fisher spotted a white convertible Mustang and attempted to conduct a traffic stop. Defendant initially continued driving, but soon turned into a parking lot and stopped. He was wearing a dark blue hooded sweatshirt, a black down vest, blue jeans, and white shoes.
Sheriff’s Deputy Stacey Lonteen, who had been involved in the Taco Bell robbery investigation two days before the Arby’s incident and responded to Deputy Fisher’s request for assistance, recognized defendant from the Taco Bell video surveillance tape. Lonteen contacted Oscar and Applegate and summoned them to the location for a possible field identification. Applegate arrived first and was admonished that the individual she was about to see might or might not have been involved in the earlier Taco Bell robbery and might have changed his physical appearance; she was further advised to remain objective. Applegate said, “Yeah, that looks like him. I’m almost positive.”
Oscar was told not to discuss the matter with Applegate.
Oscar arrived shortly after Applegate left and was similarly admonished by Lonteen. Oscar said that based on his build, defendant looked like the person who had robbed the Taco Bell. She noted that while she had been unable to get a good look at the perpetrator’s face at the time of the robbery, she was pretty sure defendant’s physical build matched that of the robber. At trial, Oscar testified she was “[p]retty certain” the suspect’s build matched that of defendant.
Alcala described the Arby’s robber to the 911 operator as a white male, six feet tall, with some facial hair, wearing a blue shirt, a vest, blue pants, and white shoes. However, she was unable to identify defendant in a field show-up. Chahal told deputies defendant looked like the perpetrator but said she could not be sure. Chahal confirmed, however, that defendant’s height was consistent with that of the perpetrator.
Defendant was arrested. A search of his car revealed a black leather jacket, a white beanie, a pair of dark green knit gloves, a kitchen knife with a black handle, black sunglasses, a black tank top, a blue beanie, and some paperwork belonging to defendant.
Defendant was charged with one count of robbery based on the Check Into Cash incident (count one); one count of robbery based on the Taco Bell incident (count two); three counts of attempted robbery by means of force based on the Arby’s incident involving Alcala, Chahal, and Rosales (counts three, five, and six, respectively); and one count of assault with a deadly weapon by means of force likely to produce great bodily injury related to Alcala and the incident at Arby’s (count four). The complaint alleged five prior strike convictions and further alleged that, with respect to counts one, three, five, and six, defendant was armed with a knife. (§ 12022, subd. (b)(1).)
Prior to the preliminary hearing, defendant made a Marsden motion. Following a closed hearing, the court denied the motion.
The jury convicted defendant on all counts and found true the allegation that he was personally armed with a knife during the commission of counts one, three, five, and six. In a bifurcated trial, the court found true all prior strike conviction allegations. The court sentenced defendant to 77 years to life in state prison, and defendant filed a timely notice of appeal.
DISCUSSION
I. Denial of Marsden Motion
Appellant contends his Marsden motion was improperly denied. We disagree.
A defendant is entitled to have his or her appointed counsel replaced if the record clearly shows that counsel is not providing adequate representation or that the defendant and counsel have become so embroiled in conflict that ineffective representation will likely result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett); Marsden, supra, 2 Cal.3d at p. 123.)
Here, prior to the preliminary examination, defendant made a Marsden motion requesting substitution of his assigned public defender, John Roth. Defendant explained that although he had spoken with Roth during the brief period since Roth had taken over his case, Roth had not visited him in jail as promised. Defendant further complained that Roth could not explain why the People were refiling previously dismissed charges against him.
Roth responded that he had just been assigned to defendant’s case three weeks earlier and had been unable to meet with defendant in person because of a heavy trial calendar. However, Roth explained, he had reviewed nearly 900 pages of discovery, spent “a couple hours” reviewing “twelve to thirteen CD’s of information,” and was prepared to go forward with the preliminary hearing. Roth explained that he did not have any documentation indicating why the previously dismissed charges were being refiled but could surmise several possible reasons based on his review of the record; however, he had not had time to explain that to defendant because of the timing of the Marsden motion.
Given Roth’s review of the discovery and the fact that he was prepared to commence with the preliminary hearing, the court inquired whether Roth would be able to visit defendant at jail within the week. Roth conferred with defendant and responded affirmatively. At defendant’s request, and subject to the People being given an opportunity to object, the court granted a short delay in the proceedings to permit Roth and defendant time to meet prior to the preliminary hearing. In the end, the court ruled there had not been “such a breakdown in the relationship between [defendant] and Mr. Roth that it would be impossible for Mr. Roth to properly represent the defendant.” Noting that Roth had “only been in the case fifteen days” and had not been able to meet with defendant at the jail because of “his trial schedule and other court deadlines,” the court denied the motion, giving defendant and Roth time to meet outside the presence of the court prior to commencement of the preliminary hearing.
We review for abuse of discretion the trial court’s denial of a Marsden motion and will find such an abuse only where the defendant has shown that the failure to replace appointed counsel would substantially impair his or her right to assistance of counsel. (Barnett, supra, 17 Cal.4th at p. 1085.) We find no error.
During the three-week period after being assigned to defendant’s case, Roth reviewed a significant amount of discovery in order to familiarize himself with the matter. While he admittedly had not been to the jail to visit with defendant in person, he was prepared to meet with him prior to the preliminary hearing and explain why previously dismissed charges were being refiled. Defendant agreed to proceed in that manner, meeting with Roth prior to the preliminary hearing and going forward with the preliminary hearing without further complaint. From that, we infer the relationship between client and counsel was still intact and functioning. We note that while the record reflects a second Marsden request by defendant at the April 19, 2007, pretrial hearing, the court continued the matter because of defense counsel’s absence, and according to the court’s April 26, 2007, minute order, the Marsden motion was “drop[ped].” We infer from that course of events that any problem between client and counsel was resolved to defendant’s satisfaction.
On the record before us, defendant has not shown that Roth provided inadequate representation or that, at the time of the Marsden hearing, he and Roth were so embroiled in conflict that ineffective representation was likely. Accordingly, defendant has failed to demonstrate an abuse of discretion in the denial of his Marsden motion.
II. Admission of Field Identification Evidence
Defendant contends the court erred by denying his motion to exclude the field and subsequent in-court identifications by Oscar and Applegate.
We exercise our independent judgment in reviewing a trial court’s ruling on the identification procedure. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) We first consider “whether the identification procedure was unduly suggestive and unnecessary.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) In determining whether the procedure was unduly suggestive, “‘[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.’” (Id. at p. 990.) If the lineup was unduly suggestive and unnecessary, then we consider “whether the identification itself was nevertheless reliable under the totality of the circumstances . . . .” (Id. at p. 989.) If unreliable under this test, we reverse only if there is a “‘substantial likelihood of irreparable misidentification.’” (Id. at p. 990.)
Defendant claims the field identifications were “unduly suggestive” because the witnesses were preconditioned to identify the person in custody when they were told they were being summoned to identify a possible subject involved in the Taco Bell robbery, and defendant was handcuffed and in the presence of numerous police officers and marked patrol cars when the witnesses arrived. Defendant argues further that the field identifications were unnecessary because the Taco Bell robbery had taken place two days earlier, and given that his arrest for the Arby’s robbery was inevitable, there was no exigency and therefore no reason not to wait for a more formal photographic “six-pack” or jail lineup. In any event, he argues, the field identifications by Oscar and Applegate were not reliable under the totality of the circumstances because neither witness was able to get a good look at defendant (i.e., Oscar did not see the robber’s face and Applegate “never saw him from the front”) and both relied on defendant’s build and body shape to identify him. We disagree.
Here, both Oscar and Applegate were summoned to the field show-up by Deputy Lonteen. The witnesses arrived separately and were never present at the location at the same time. Neither witness spoke to the other prior to the identification. Both witnesses were similarly admonished to keep an open mind and told that the individual shown might or might not have been involved in the Taco Bell robbery. Applegate was “almost positive” defendant was the robber. Oscar was “pretty sure” defendant’s build matched that of the robber. While it is true that every field identification is inherently suggestive, “[t]he potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.” (People v. Odom (1980)108 Cal.App.3d 100, 110.) We do not find the field identifications to have been unduly suggestive, nor do we find them to have been unnecessary given the similarity between the two robberies and the fact that one was committed just two days after the other, the second being in relatively close proximity to the first.
In any event, even if we were to determine that the field show-up procedure was suggestive, we would still conclude that the identification was reliable under the totality of the circumstances. Oscar could not see defendant’s face during the robbery; however, she had plenty of time to observe what he was wearing and assess his build, despite the fact that she was admittedly afraid and did not want to look at him. Her recollection of defendant’s clothing, size, and shape was, as it turns out, accurate. Although Oscar was not absolutely certain defendant was the robber, she was “pretty sure” based on his build.
To the extent Oscar’s identification may have been equivocal, Applegate’s identification of defendant was not. Applegate saw the robber standing behind Oscar, then observed him as he walked out from behind the counter and right past her to exit the restaurant. She identified him as “Hispanic, about six feet tall,” with a “large build” and “a thick, muscular neck,” probably weighing 200 pounds. She noted he wore a white beanie that covered most of his hair, but he had short black sideburns. She described him as unshaven, with a thin mustache, wearing a black T-shirt and light-colored blue jeans. Although she only saw his face from the side, Applegate confirmed she “could definitely recognize him” if she saw him again. As for both witnesses, we note that the fact that the field identifications occurred two days after the Taco Bell robbery did not appear to dull either witness’s memory or impair her ability to recognize and identify defendant. We find the field identifications by Oscar and Applegate to be reliable under the totality of the circumstances here.
Defendant argues he was prejudiced by admission of the field identifications, speculating that Applegate’s identification of him at the field show-up made it “unlikely that she would retract” her identification at trial regardless of her degree of certainty. Defendant also concludes, without reasoning or authority, that “this Court cannot say beyond a reasonable doubt” that he would not have obtained a more favorable result in the absence of those identifications. Indeed, as the People accurately point out, defendant took full advantage of the opportunity to cross-examine both Oscar and Applegate, as well as the deputies involved in the field show-ups. He presented expert testimony related to the inaccuracies of eyewitness identifications. We also note that, in addition to the field and in-court identifications, the jurors were shown portions of the surveillance videotape from the Taco Bell robbery and were able to draw their own conclusions from that evidence. Given the other evidence in the case, including the items found in the car in which defendant was apprehended, any possible error in admitting the identification was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711].)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., BUTZ , J.