Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB726312
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
A jury convicted defendant Darnell Damar Snowden of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and found true the allegation that he personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)). In addition, the trial court found true the allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to 21 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred by refusing his proffered jury instruction concerning whether the show-up identification procedure used by the police was unduly suggestive to the robbery victims.
For reasons that we will explain, we conclude that the trial court did not err in refusing the instruction. Therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2008, defendant was charged by information with second degree robbery (§§ 211, 212.5, subd. (c)), and it was alleged that he personally used a firearm in the commission of the offense (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The information further alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)), and that the conviction underlying one of those terms was a prior serious felony and qualified as a strike (§§ 667, subds. (a) & (b)-(i), 1170.12). The information also contained allegations against codefendant Maurice Shawn Hodge, including a count for second degree robbery.
The trial court granted defendant’s request to bifurcate trial on the prior allegations, and defendant waived his right to a jury trial on those allegations. The case proceeded to jury trial on the robbery charge against defendant and his codefendant, Hodge.
The Prosecution’s Case
On the night of March 31, 2007, an employee at a Mountain View liquor store was working by himself. About 9:15 p.m., a “regular customer” rode his bicycle to the store and observed two African-American males “kind of loitering” nearby. The customer entered the store and went to the soft drink area. The two males who were outside the store then ran in wearing masks and holding semiautomatic guns. One of the males pointed a gun at the customer and ordered him “to the ground.” The customer complied and put his face on the floor. The other male approached the employee, pointed a gun at him, forced him to open the cash register, and took money that was in the register and on a shelf below the register. The male who had ordered the customer to the ground took a bottle of gin. The robbers were in the store for a total of 30 seconds to two minutes before exiting. The store employee told the customer that the robbers had left, and then the employee ran out of the store and saw the two robbers jump into a slowly moving car. The employee believed that the car was a gray or green four-door sedan, and he was able to write down the last three digits of the license plate number. The vehicle was last seen on Moffett Boulevard heading towards Highway 101.
The store employee eventually indicated to the police that the car was olive green.
The employee called the police, and about 9:26 p.m., Mountain View police officers on patrol received a dispatch about the robbery. Mountain View police went to the liquor store and interviewed the employee. The employee knew that approximately $1,105 had been taken, as well as the denominations of many of the bills, because he had counted most of the cash shortly before the robbery. He provided a description of the robbers, including their clothing and shoes. He did not remember anything “distinctive” about the clothing.
Mountain View police broadcast a “be-on-the-lookout” notice to surrounding law enforcement agencies regarding the robbery suspects and their vehicle. About 9:50 p.m., an agent with the Palo Alto Police Department saw a vehicle that matched the description with three occupants. The agent gave chase in his patrol car, as did East Palo Alto police officers in another patrol car. Initially, the robbers’ vehicle “accelerated at a high rate of speed, ” traveling approximately 70 miles per hour in a 35 mile-per-hour zone. Eventually the robbers’ vehicle “came to an abrupt stop” in the middle of a parking lot at an apartment complex in East Palo Alto. Codefendant Hodge, who was the driver of the vehicle, was held at gunpoint by the police and eventually arrested. Defendant, who fled the vehicle, was chased. He was arrested after he was found hiding in bushes in front of a residence. The third occupant of the vehicle also fled but was never located. Defendant had $1,093 in cash. Hodge had $852.03. No handguns were found.
The customer who was present during the robbery left the liquor store before the police arrived, but the police were able to contact him through a phone number that he had given to the store employee. Within ten minutes of arriving home on his bicycle, the customer received a call from the police. A police officer subsequently came to his house to take a statement. At the house, the officer received “a call over the radio” that contact had been made with a vehicle “matching the description” of the one leaving the scene of the robbery. The officer persuaded the customer to go with him to East Palo Alto to possibly identify the suspects. The officer “stressed the importance of trying to make the identification as... close to the actual robbery as possible.”
Prior to the in-field show-up, the officer admonished the customer as follows: “We are detaining a person for you to view who may or may not be the person who committed the crime. It is important to keep an open mind. Just because the person is being detained does not mean the person committed the crime. Feel free to ask an officer any question, but do not talk to... any other witness about the identification.” The customer indicated that he understood the admonition.
The officer drove the customer to the East Palo Alto location and parked the patrol car. The customer observed that “[a]round the corner down the block” there was “a fairly large amount of police officers” present, most with rifles. According to the customer, “[t]hey were kind of looking at rooftops making sure the whole area was secure.”
The customer was in the patrol car when two suspects were separately shown to him. The customer identified the first suspect, defendant, within 11 seconds as the person who had pointed the gun at him. He recognized defendant based on his clothing, which consisted of a dark hooded sweatshirt and baggy blue jeans, and shoes, which were white tennis shoes with a black stripe. He acknowledged that there was nothing about the description of the clothing “that would make it stand out as being unique or unusual.” The customer believed that the second suspect, Hodge, was the robber who had confronted the store employee, based on Hodge’s clothing and height. At trial, the customer was “fairly confident” about the identification that he made on the night of the robbery, based on the “glimpse” that he had when he arrived in the store parking lot, his “glimpse” when the gun was pointed at him, the car license plate, and the “close[] resembl[ance]” of the suspects to the description. He admitted that his knowledge of the suspects’ car was based on information that the store employee had written down.
Although the customer identified Hodge as the other robber who had entered the store, the prosecutor argued to the jury that Hodge was the driver of the getaway car.
The liquor store employee was separately brought to the East Palo Alto location by the police. The employee initially testified on direct examination that he was told by the police that he was “going to view an individual and [he] may or may not recognize them.” He later testified on cross-examination that the police told him, “I will take you to a location and you will identify.” He eventually stated, in response to a question about whether the police had told him that the robbers may not be present: “I remember police say something, but all of that, you know, details, I don’t remember clearly what they said.” Regarding the vehicle, the employee testified that the police told him, “You will come to the location to identify the car, to see whether that car is the same car that you saw.” A police officer testified that he admonished the employee prior to viewing the suspects that “[t]he people that he will be viewing may or may not be the people who committed the crime. Just because the people are being detained and may be in handcuffs does not mean the people committed the crime. It is up to him to decide if he recognizes the people as those who committed the crime.” According to the police officer, the employee indicated that he understood the admonition and he had no questions.
The employee was provided with a Vietnamese language interpreter at trial. When the employee spoke to the police after the robbery, he did not have an interpreter and all the conversations were in English. Regarding these conversations, he testified: “If I didn’t understand, I ask him again.”
The employee recognized defendant and told the police, “[s]ame clothes, same shoes.” When the employee was shown Hodges, the employee stated, “ ‘No, not this guy’ ” and indicated that the robber who had pointed the gun at him was “ ‘thinner.’ ” At trial, when questioned about Hodges, the employee stated that he did not “remember anybody, ” he “did not see their faces” when they came to the store, and because he “did not see the faces” he could not “identify anybody.”
The employee recognized the vehicle that had been stopped by the police as the one in which the robbers had driven away. The last three numbers on the license plate of the vehicle matched the numbers that the employee had written down regarding the robbers’ car. The employee saw inside the car a bright blue mask and a pair of white tennis shoes with orange stripes that he believed had been worn during the robbery. He also saw a bottle of gin that was the same brand that had been taken from the store.
The customer described one robber as wearing “a black colored mask” and the other robber as wearing a “dark colored mask” to police.
A criminalist from the county crime laboratory testified that with respect to the blue ski mask, the “mouth hole area” had a mixture of DNA from at least three people, and defendant was “included as a possible contributor.” Regarding the mixture of DNA found on “scrapings from the eye hole and the nose area” of the mask, defendant was “excluded” as a contributor, meaning that “not enough or any of his DNA [was] present....” Defendant’s DNA was on a black knit cap and he was “included as a possible contributor” of the DNA mixture on a black mouth and nose mask found in the robbers’ vehicle. Hodge was “excluded” as a possible contributor with respect to these items.
Neither the liquor store employee nor the customer testified about one of the robbers wearing such a cap, which had a logo for the Raiders football team on it.
The Defense Case
Samuel Manuel Arellano was called as a witness for defendant. Arellano has known defendant for many years and described his relationship with defendant in 2007 as “[p]retty much like family.” Arellano testified that on March 31, 2007, he and defendant were at a house in East Palo Alto. According to Arellano, defendant left the house about 9:00 p.m. Arellano has two prior convictions for second degree burglary and a prior misdemeanor conviction for battery on a girlfriend or close friend.
Ederana K. Cooper was called as a witness for codefendant Hodge. Cooper and Hodge “grew up together” and she has known him for more than ten years. Cooper testified that Hodge came by her house in Menlo Park to visit their daughter about 8:00 p.m. on March 31, 2007. Cooper had not expected him that evening. Cooper testified that Hodge visited with their daughter and then she put their daughter in bed at 9:00 p.m. She and Hodge subsequently went outside within 15 or 20 minutes, about 9:20 p.m. According to Cooper, they talked outside for about 20 or 30 minutes before Hodge’s “ride came back and got him.” There were already two people in the car. Cooper saw the driver get in the back seat and Hodge got in the driver’s seat and “took off driving the car.” Cooper thought it was a “Chevy Malibu or something, ” but she was not “sure of the car.” She also indicated that the color of the car was “silver, gray, or something like that.” Cooper is not aware of Hodge having a vehicle. Cooper has been convicted of possession for sale of drugs, second degree burglary, and petty theft with a prior conviction.
Jury Verdicts, Findings on the Priors, and Sentencing
The jury found defendant guilty of second degree robbery (§§ 211, 212.5, subd. (c)) and found true the allegation that he personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)). The jury also found codefendant Hodge guilty of second degree robbery.
We affirmed the judgment against Hodge in an unpublished opinion. (People v. Hodge (June 30, 2010, H034437).)
Before a court trial was held on the prior allegations against defendant, he filed a motion challenging the constitutional validity of one of the alleged prior convictions and seeking to strike the conviction. The court denied the motion. After a court trial on the prior allegations, the court found true the allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms (§ 667.5, subd. (b)).
On April 22, 2010, the trial court sentenced defendant to 21 years in prison. The sentence consisted of six years, double the midterm, for the robbery, with a consecutive term of 10 years for the weapon use enhancement, and five years pursuant to section 667, subdivision (a). The court stayed the punishment for one of defendant’s prison priors and struck the punishment for his other two prison priors.
III. DISCUSSION
During an unreported conference in chambers, the trial court apparently denied a request by defense counsel to add language to CALCRIM No. 315, which pertains to eyewitness identification testimony. The court did instruct the jury pursuant to a modified version of CALCRIM No. 315 as follows:
“You have heard eyewitness testimony identifying the defendants. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
“In evaluating identification testimony, consider the following questions:
“Did the witness know or have contact with the defendants before the event?
“How well could the witness see the perpetrators?
“What were the circumstances affecting the witness’[s] ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
“How closely was the witness paying attention?
“Was the witness under stress when he made the observations?
“Did the witness give a description... and how does that description compare to the defendants?
“How much time passed between the event and the time when the witness identified the defendant?
“Was the witness asked to pick the perpetrators out of a group?
“Did the witness ever fail to identify the defendants?
“Did the witness ever change his... mind about the identification?
“How certain was the witness when he... made an identification?
“Are the witness and the defendants of different races?
“... Was the witness able to identify other participants in the crime?
“Was there a show-up or in-field identification by the witness?
“What were the circumstances of that show-up or in-field identification?”
“Were there any other circumstances affecting the witness’[s] ability to make an accurate identification?
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendants not guilty.” (Italics added.)
Outside the presence of the jury, defense counsel placed on the record his objection concerning the instruction. Defense counsel explained that he had requested the addition of the following language to CALCRIM No. 315: “Was the show-up procedure used by the Mountain View Police Department unnecessarily suggestive as to the identity of the defendants here?” In support of the proposed instruction, defense counsel argued that the “victims were unnecessarily prejudiced” in connection with the show-up. For example, a victim was taken “across town in a police car” which, according to defense counsel, suggested to the victim that the police had a “serious suspect in the case.”
The prosecutor contended that defense counsel’s statements were “argument for closing, ” were not “appropriate for the jury instruction, ” and that codefendant’s counsel had proposed “another alternative and that was allowed in.”
The trial court denied defense counsel’s request. The court stated that the “proposed language” was “argumentative.” The court further stated that defense counsel was not prevented “from arguing anything that he ha[d] said in support of that language.” In this regard, the court explained that there were “many factors under [CALCRIM No.] 315 that he could use in support of those arguments without needing or necessitating the proposed language.” The court also observed that defense counsel might rely on the “proposed addition” to the instruction by codefendant’s counsel, concerning whether there was a “show-up or in-field identification by the witness” and “the circumstances of that show-up or in-field identification.” Defense counsel could also rely on the “catch-all factor” in CALCRIM No. 315 concerning whether there were “any other circumstances affecting the witness’[s] ability to make an accurate identification[.]” The court concluded that “nothing” in the instruction prevented defense counsel from making his arguments concerning an unnecessarily suggestive show-up procedure and that there were “several factors that he could rely on to make those arguments.”
On appeal, defendant contends that the trial court erred by refusing to give an instruction that would have “ask[ed] the jury to consider the identification in light of whether the in-field show-up was unduly suggestive.” Defendant argues that “[t]he failure to give the requested pinpoint instruction removed from the jury’s determination the question of whether what the evidence had shown were very suggestive procedures....” Defendant asserts that the error violated his federal and state due process and fair trial rights and that he suffered prejudice as a result.
The People respond that the trial court did not err in refusing the proposed instruction and that defendant did not suffer prejudice in any event.
A defendant has the right to “an instruction that ‘[pinpoints] the theory of the defense.’ [Citation.] In a proper instruction, ‘[what] is pinpointed is not specific evidence as such, but the theory of the defendant’s case.’ [Citation.]” (People v. Wright (1988) 45 Cal.3d 1126, 1137 (Wright); see also People v. Kraft (2000) 23 Cal.4th 978, 1063.) With respect to eyewitness identification, “ ‘the defendant may be entitled to a special instruction specifically directing the jury’s attention to other evidence in the record -- e.g., facts developed on cross-examination of the eyewitnesses -- that supports his defense of mistaken identification and could give rise to a reasonable doubt of his guilt.’ [Citation.]” (Wright, supra, 45 Cal.3d at p. 1141, italics omitted.)
The California Supreme Court has explained that an instruction “on eyewitness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [¶] The instruction should not take a position as to the impact of each of the psychological factors listed.... An instruction that ‘explained’ the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge.” (Wright, supra, 45 Cal.3d at p. 1141.) The California Supreme Court has concluded “that the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness.” (Id. at p. 1143, fn. omitted.)
In Wright, the California Supreme Court determined that CALJIC No. 2.92 (which is embodied in CALCRIM No. 315) “will usually provide sufficient guidance on eyewitness identification factors” if it is appropriately modified to take into account the evidence presented at trial. (Wright, supra, 45 Cal.3d at p. 1141.) A trial court is not required to give a pinpoint instruction if it is duplicative of other instructions. (Wright, supra, 45 Cal.3d at p. 1134; see also People v. Bolden (2002) 29 Cal.4th 515, 558 (Bolden).)
The version of CALJIC No. 2.92 considered by the court in Wright stated as follows: “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the [crimes] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following: [¶] [The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;] [¶] [The stress, if any, to which the witness was subjected at the time of the observation;] [¶] [The witness’ ability, following the observation, to provide a description of the perpetrator of the act;] [¶] [The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;] [¶] [The cross-racial or ethnic nature of the identification;] [¶] [The witness’ capacity to make an identification;] [¶] [Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act;] [¶] [Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;] [¶] [The period of time between the alleged criminal act and the witness’ identification;] [¶] [Whether the witness had prior contacts with the alleged perpetrator;] [¶] [The extent to which the witness is either certain or uncertain of the identification;] [¶] [Whether the witness’ identification is in fact the product of his own recollection; ] [¶] Any other evidence relating to the witness’ ability to make an identification.” (Wright, supra, 45 Cal.3d at pp. 1165-1166.)
In this case, we determine that the trial court did not err in refusing to provide defendant’s proffered instruction concerning whether the “show-up procedure” used by the police was “unnecessarily suggestive as to the identity of the defendants.” The instruction proposed by defendant referred to the potential impact or effect on the eyewitness. Our Supreme Court has cautioned, however, that an instruction “should not take a position as to the impact” of any of the psychological factors listed. (Wright, supra, 45 Cal.3d at p. 1141.) Further, the jury was already instructed, pursuant to a modified version of CALCRIM No. 315, to consider whether there was “a show-up or in-field identification by the witness, ” “the circumstances of that show-up or in-field identification, ” and whether there were “any other circumstances affecting the witness’[s] ability to make an accurate identification.” These factors focused the jury’s attention on the show-up procedure and whether it had any effect on the witnesses who identified defendant, and thus the instructions given to the jury necessarily encompassed defendant’s requested language concerning the possible suggestiveness of the show-up procedure. The court was not required to give a duplicative instruction. (Wright, supra, 45 Cal.3d at p. 1134; see also Bolden, supra, 29 Cal.4th at p. 558.)
Moreover, the instructions given to the jury concerning eyewitness identification properly left the effect of the factors to cross-examination and argument by counsel, including the argument that the show-up procedure was unnecessarily suggestive as to the identity of defendant. (See Wright, supra, 45 Cal.3d at p. 1143.) Indeed, defense counsel cross-examined the police officers who were involved in the eyewitness identification process about the procedure in general and specifically in this case, including whether certain conduct by the police was too suggestive or otherwise prejudicial to defendant. Defense counsel also attempted to suggest problems with the show-up procedure during argument to the jury after the close of evidence. For example, defense counsel told the jury: “If a police officer says, ... after you’ve just been through a traumatic situation like a robbery, ‘We want you to get in our car and drive to East Palo Alto and do a viewing, ’ what are you thinking? Aren’t you thinking something like this: ‘They told me it may not be there, but... these are good policemen. They wouldn’t drag me all the way across town for no reason’? [¶] And that’s the psychology of this thing that I think you need to talk about. Most of us, myself included, if I’m pulled over by a police officer and he tells me, I’m going 45 in a 35 miles an hour zone, ... I might say, ‘Well, I know I was only going 35, but I’m going to tell him he’s wrong? Am I going to tell him he’s crazy? Am I going to say anything to disrespect him in any way?’ I don’t think that’s the average response.”
In sum, we determine that the modified version of CALCRIM No. 315 that was given in this case adequately instructed the jury regarding its evaluation of the testimony concerning the show-up or in-field identifications by the witnesses, and the court did not err in refusing to provide defendant’s proffered instruction regarding the potential impact or effect of the show-up procedure on the accuracy of the eyewitness’ identifications.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.