Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA299480, Patricia M. Schnegg, Judge.
Randi Coven, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Martell Deandre Thomas, appeals from his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and firearm use and street gang findings. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d).) Defendant argues the trial court improperly admitted suggestive and unreliable identification evidence and failed to award the proper number of presentence custody credits for actual confinement time. We modify the sentence credit award but otherwise affirm the judgment.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On January 26, 2006, Peter Dae Hee Hong, the owner of Buddy’s Market on the corner of Avalon Boulevard and East 41st Street, maintained 31 security cameras at the store. Eight of those cameras were located outside, two of which were at the front entrance. A review of the surveillance video date stamped between 10:16 and 10:20 a.m. on January 26, 2006, showed defendant entering the store in dark clothing, remaining inside for several minutes and then leaving. After defendant left the store, Mr. Hong heard five or six gunshots.
Between 10:20 and 10:25 a.m. on January 26, 2006, Anthony Meighan was washing his car near East 41st Street and Avalon Boulevard. Mr. Meighan saw an older light brown car pass on 41st Street from east to west. The driver stopped near a body shop, got out, and spoke to someone outside the gate. The driver was an African-American who had a bushy Afro hairstyle. Thereafter, the man got back into the car, made a U-turn, and drove east on 41st Street. Shortly after the car passed, Mr. Meighan heard four to six gunshots. Mr. Meighan saw two men dive toward the sidewalk. One did not get up. The car proceeded toward McKinley Street and turned right.
At approximately 10:25 a.m. on January 26, 2006, Carlos Hernandez and Guillermo Espinoza were about to get into a truck on East 41st Street near McKinley Street. The two men were going to eat lunch in their truck. Both Mr. Hernandez and Mr. Espinoza saw a tan 1970’s or 1980’s vintage Oldsmobile pass by. The car had a Department of Motor Vehicles sticker on the rear window and painted dollar signs in the side windows. The Oldsmobile pulled into a driveway, backed up, and drove in the opposite direction. The men heard seven or eight gunshots. The Oldsmobile then drove by quickly toward McKinley Street and turned right. The driver of the Oldsmobile was an African-American who wore his hair in a large unshaped Afro hairstyle. Mr. Espinoza spoke with responding police officers and gave them a description of the car and its driver. Mr. Hernandez and Mr. Espinoza saw the same Oldsmobile the morning after the shooting near San Pedro Avenue and 41st Street. They flagged down a passing police officer to report seeing the car. The Oldsmobile was located on January 27, 2006 on 41st Street and San Pedro Avenue and was impounded. Defendant’s palm print was on the hood of the Oldsmobile.
C.W. Ford was standing with Charles Wheeler in front of 679 East 41st Street at approximately 10:20 a.m. on January 26, 2006. Mr. Ford and Mr. Wheeler were friends. Mr. Ford heard a man’s voice say, “What’s up.” When Mr. Ford turned around, he saw a gun barrel pointed at them from a nearby car on 41st Street. Mr. Ford dove to the ground. Within seconds thereafter, Mr. Ford heard approximately five gunshots. Mr. Ford saw Mr. Wheeler lying injured on the sidewalk. Mr. Ford asked some nearby neighbors to call the police. Mr. Wheeler died of a gunshot wound to the head. Mr. Wheeler had gang-related tattoos on both of his arms.
Mercedes Lott sold the Oldsmobile with the Department of Motor Vehicles sticker and dollar signs in the windows to defendant in January 2006. Defendant was a friend of her boyfriend at the time, James Smith. Mr. Smith was a member of a local gang. Ms. Lott was shown a photographic lineup by police on February 16, 2006. Ms. Lott identified defendant’s photo as the individual to whom she sold the car. Ms. Lott’s fingerprints were found inside the Oldsmobile.
Tammy Givens was Mr. Wheeler’s sister. A few days after Mr. Wheeler was killed on January 26, 2006, Ms. Givens went to Buddy’s Market at Avalon Boulevard and 41st Street. Ms. Givens asked the market owner to obtain photos from the security cameras in an effort to catch the person that killed her brother. After obtaining one photo, Ms. Givens showed it to a neighbor, Mr. Meighan. Ms. Givens asked Mr. Meighan if the person in the photo was the man that shot her brother. Mr. Meighan responded, “Yes” without hesitation.
Los Angeles Police Detective Salaam Abdul arrived at the shooting scene on January 26, 2006. Detective Abdul saw seven shell casings on the street directly across from where the victim had fallen. Detective Abdul believed the casings had been ejected from a semiautomatic weapon. Detective Abdul contacted defendant on February 9, 2006, at an apartment building on 41st Street directly across from where the Oldsmobile had been found. Defendant identified himself as Marcus Thomas. Detective Abdul saw defendant on a balcony of the apartment. Detective Abdul believed defendant resembled the individual depicted in the video from Buddy’s Market. Defendant denied any gang membership.
Mr. Espinoza was shown a photographic lineup by Detective Abdul on February 21, 2006. Mr. Espinoza was unable to identify the individual that drove the Oldsmobile on the day of the shooting. Mr. Espinoza later identified a photograph of the Oldsmobile.
Mr. Meighan was interviewed by Detective Abdul on February 26, 2006. Mr. Meighan was unable to identify anyone from the photographic lineup shown to him at the time. Mr. Meighan believed the photograph of the Oldsmobile appeared to be the one he had seen on the day of the shooting. When shown the still photo that Ms. Givens had obtained from the market, Mr. Meighan stated that it appeared to be the photo she had shown him. Mr. Meighan said he saw an individual with a large bushy Afro and dark skin park the car. When the man got back into the car and drove eastbound Mr. Meighan heard gunshots. Mr. Meighan said he observed the same person in the car that he had seen on the corner of 41st and Avalon Streets. Defendant’s photo was included in one of the photographic lineups shown to the witnesses. Defendant’s hair was cut in a fairly short Afro hairstyle in that photograph. In another photographic lineup shown to the witnesses, including Mr. Meighan, Mr. Hernandez, and Mr. Espinoza, defendant was depicted wearing braids.
On March 1, 2006, Detective Abdul interviewed Mr. Hernandez. Mr. Hernandez was shown two photographic lineups. Mr. Hernandez was unable to identify anyone relative to the January 26, 2006 incident. Mr. Hernandez was shown the single photograph taken from the store video secured originally by Ms. Givens. Detective Abdul described Mr. Hernandez’s response, “[T]hat also appeared to be the guy that he saw -- that appeared to be the guy that Ms. Givens – the photo that Ms. Given[s[] had given to him that appears to be the same guy.” The bushy hairstyle and round face of the individual in the photo looked like the driver of the Oldsmobile. On March 2, 2006, the detectives interviewed Mr. Hernandez again. Mr. Hernandez described the driver of the Oldsmobile as having a wide nose. Mr. Hernandez was shown many photographs at that time. Mr. Hernandez selected one photograph at that time.
Defendant was arrested on March 16, 2006. Defendant agreed to speak with Detective Abdul. Defendant again denied any current gang membership, indicating he had once belonged to a local gang but was no longer a member. Defendant said that he had never been in Buddy’s Market because it was in a local gang territory. When confronted with the still photo from the market videotape, defendant denied it was him. Defendant was shown a Department of Motor Vehicles identification card with his name, Martell Diondre Thomas, his address, and signature. Although defendant initially denied that the identification depicted him, he later said it had his signature and must be him. When asked if there was any reason his fingerprints would be found in the Oldsmobile, he stated that they could not because he was a burglar who burglarizes only new cars. Defendant denied having purchased the Oldsmobile, indicating that he did not know how to drive and had no driver’s license. Defendant’s hair was braided at the time of his arrest. At trial, defendant’s hair was cut short. Defendant had also gained a considerable amount of weight.
Officer Eric Rose was assigned to the Newton Division of the gang enforcement detail for three and one-half years prior to the trial in this case. Officer Rose regularly contacted gang members within the community. Many of the contacts with gang members were consensual in nature. Officer Rose was familiar with the local gang, which had been in existence for 25 to 30 years and had approximately 200 members. The gang had common signs or symbols. In his conversations with gang members and other officers and based upon his arrests, Officer Rose learned that the gang’s primary activities were robberies, narcotics sales, assaults with deadly weapons, and murders. The rival gang’s territory overlaps with some of the local gang territory.
In the six months proceeding January 26, 2006, there was a heightened level of activity between the local and rival gang. There were 25 to 30 reported shootings, involving injuries and death between the gangs. Within two weeks prior to January 26, 2006, there were approximately two shootings each night.
Officer Rose knew defendant as an admitted member of the local gang. Officer Rose spoke to defendant on three occasions. On each of these three occasions, defendant was asked about his gang membership. On each of these three occasions, defendant admitted he was member of the gang. Officer Rose saw defendant on January 27, 2006. Defendant was accompanied by three of his fellow gang members. Defendant was riding in a funeral procession for the late Anthony Call. Mr. Call was a gang member who had ties with defendant’s gang. Defendant readily admitted his membership in the local gang on January 27, 2006, while speaking to Officer Rose. Another shooting had taken place approximately four hours prior to the funeral. Larry Harris, a member of the rival gang had been killed in that shooting. Mr. Call’s father was awaiting trial for Mr. Harris’s murder. The individual arrested for Mr. Call’s murder was a member of the rival gang. Officer Rose testified that retaliation plays an important role in gang culture and instills fear in the community.
Gang members often demonstrated their membership and allegiance by tattoos. Often the tattoos indicate the individual has “put in work” for the gang by selling narcotics or committing robberies or other criminal activities. The activities benefitted the gang. When posed with a hypothetical which included a scenario similar to the facts of this case, Officer Rose believed that the crime was committed for the benefit of the gang.
Officer Rose was familiar with the fact that Mr. Call was convicted of robbery in case No. BA270030 on October 1, 2004. Officer Rose also knew Bernard Legrone who was convicted of cocaine base sales in case No. BA286215 on April 4, 2006. In addition, Brandon Johnson was convicted of cocaine possession for sale in case No. BA286215 on April 14, 2006. All three individuals were documented members of defendant’s gang.
Defendant presented testimony by a cognitive psychologist, Dr. Kathy Pezdek, regarding eyewitness identification and memory. Dr. Pezdek reviewed the police reports, photographic lineups, surveillance photographs, and a transcript of the preliminary hearing in preparation for her testimony. Dr. Pezdek testified that memory does not work like a video camera. When asked to identify someone an individual has seen, they probably remember general characteristics such as gender, age, ethnicity, race, height, and build. However, memory is much less precise when one is asked to identify someone from a photographic display. Dr. Pezdek indicated several factors relate to the reliability of eyewitness identification, including: the exposure time; information about how far apart someone’s eyes are; the shape of their nose and the configuration of their jaw line. Dr. Pezdek related that studies have reported that when people look at faces for a brief period of time, they are much more likely to make a misidentification later. When a firearm or knife is used during a crime, witnesses tend to focus on the weapon rather than the face of the individual holding the weapon. Those who stare at the gun have more misidentifications of the face of the person holding the firearm. There is a strong propensity for individuals to make a more accurate identification of people of their own race or ethnicity. Bias may be introduced into identification from photographic lineups if all of the individuals depicted do not match the description given by the eyewitness. If a police officer shows the witness only one photograph, bias is also introduced into the identification process. Once an individual has made a selection from either a biased or unbiased procedure, the last person they tend to select is the person they previously identified. Those who are highly confident in their identification are not more likely to be right.
First, defendant argues that the trial court improperly admitted unduly suggestive and unreliable identification evidence, thereby violating his constitutional due process rights. Prior to trial, defense counsel moved to exclude the single photograph taken from a surveillance video, which was shown to witnesses, after they failed to identify anyone from the photographic lineups. Defense counsel argued that the photograph was overly suggestive and tainted the identification. The prosecutor argued that the photo was admissible and that defense counsel could argue to the jury regarding the weight of that identification evidence. The trial court indicated it would revisit the issue at the time the evidence was to be introduced. The trial court subsequently ruled that the suggestiveness of the single photo went to the weight of the evidence and could be addressed by properly qualified witnesses on the subject of eyewitness identification.
In Manson v. Brathwaite (1977) 432 U.S. 98, 114, the United States Supreme Court held: “[R]eliability is the linchpin in determining the admissibility of identification testimony . . . . The factors to be considered are set out in [Neil v. Biggers (1972)] 409 U.S. [188,] 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (See also People v. Huggins (2006) 38 Cal.4th 175, 243; People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Ochoa (1998) 19 Cal.4th 353, 413 [“‘[t]he “single person showup” is not inherently unfair.’ [Citation.]”].) In People v. Huggins, supra, 38 Cal.4th at page 243, the California Supreme Court held: “‘In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, 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 . . . . [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.’” (Ibid., quoting People v. Cunningham, supra, 25 Cal.4th at p. 989; see also Stovall v. Denno (1967) 388 U.S. 293, 302; People v. Blair (1979) 25 Cal.3d 640, 659; People v. Carpenter (1997) 15 Cal.4th 312, 367; People v. Wimberly (1992) 5 Cal.App.4th 773, 788.)
Here, the eyewitnesses all described Mr. Wheeler as a young African-American man with a large “Afro” hair style. The photographic lineups shown to the witness’s depicted defendant either with braided or short hair styles. Only Ms. Lott, who knew defendant, identified him from the photographic lineup. The single photo taken from the surveillance camera, depicted defendant with a large “Afro” hairstyle. The surveillance photograph was taken just prior to the shooting at a nearby location. The surveillance photo could not easily be placed in a separate photo lineup as it would have been highly distinctive. Arguably, the use of a single photograph may have been unduly suggestive, but the identification was reliable under the totality of the circumstances. The evidence presented at trial revealed a community rife with gang warfare at the time Mr. Wheeler was shot. All witnesses identified Mr. Wheeler’s assailant as having a large “Afro” hairstyle. The witnesses: saw defendant prior to the shooting; were certain about defendant’s description, including the “Afro” hairstyle; and made their identifications within a short time after the incident occurred. Moreover, the interests of the police, the accused, and the public are best served by a prompt confirmation as to whether the correct person has been arrested. (See In re Carlos M. (1990) 220 Cal.App.3d 372, 387.) The totality of the circumstances suggests that the witness identification from the surveillance photo was not so unreliable as to strip it of all probative value. (Cf. Manson v. Brathwaite, supra, 432 U.S. at p. 114; People v. Ochoa, supra, 19 Cal.4th at p. 412; People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
In any event, even if the procedure was suggestive, it was subject to extensive cross-examination, argument of counsel and the testimony of Dr. Pezdek on the unreliability of eyewitness identification procedures. In Manson v. Brathwaite, supra, 432 U.S. at p. 113, fn. 14, the United States Supreme Court explained: “‘In essence what the Stovall [v. Denno, supra, 388 U.S. 293] due process right protects is an evidentiary interest. . . . [¶] It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart the “integrity” of the adversary process. [¶] Counsel can both cross-examine the identification witness and argue in summation as to factors causing doubts as to the accuracy of the identification including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.’ [Citation.]” (See People v. Gordon (1990) 50 Cal.3d 1223, 1243, overruled on another point in People v. Edwards (2000) 59 Cal.3d 787, 835.) All of the witnesses identified the Oldsmobile automobile used in the shooting. Defendant had purchased that car shortly before the shooting. Defendant’s palm print was found on the hood of the Oldsmobile. Defendant denied being present in Buddy’s Market. The jurors heard testimony that the witnesses could not identify defendant from the photographic lineups. The trial court could properly find the jurors could hear the evidence presented and determine what weight to afford the identifications. (Manson v. Brathwaite, supra, 432 U.S. at pp. 114, 116; Neil v. Biggers, supra, 409 U.S. at pp. 198-201.) Defendant has failed to demonstrate unreliability of the identification evidence under the totality of the circumstances. (See People v. Huggins, supra, 38 Cal.4th at p. 243; People v. Cunningham, supra, 25 Cal.4th at p. 990.)
Second, defendant argues that the trial court erred in its calculation of presentence custody credits. The trial court awarded defendant 549 days of actual custody. Defendant was arrested on March 16, 2006. Defendant was sentenced on September 25, 2007. As a result, defendant was entitled to 559 days of actual custody. The failure to award a proper amount of credits is a jurisdictional error, which may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to reflect the award of presentence custody credits of 559 days. Upon remittitur issuance, the superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.