In re S.S.

Filed 4/5/07 In re S.S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Robert Leventer, Judge. Affirmed.

Lanini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

S.S. (appellant) appeals from an order of the juvenile court sustaining a petition alleging that appellant committed first degree residential burglary in violation of Penal Code section 459. We affirm.

CONTENTIONS

Appellant contends that there was insufficient evidence to sustain the juvenile adjudication against him. Appellant further contends that his trial counsel provided ineffective assistance in failing to make a motion to exclude witness Jason Holbrooks (Holbrook) in-court and out-of-court identifications of appellant.

BACKGROUND

1. The Burglary

On December 15, 2004, at approximately 1:30 p.m., a burglary occurred at the home of Craig Barricman (Barricman) on North Ryland Avenue in Temple City. Barricman had left for work that morning at about 7:30 a.m. When he left, there was no one in the house, the front and back doors were locked, and the windows were intact.

At about 1:20 p.m. that afternoon, Holbrook, who was Barricmans neighbor across the street, was at home taking care of his two young children. He heard a car with a special exhaust approach. Holbrook looked out the living room window, and saw a red Acura with black primered front fenders, a rear spoiler, and black spoked rims park in front of his house. There was nothing obstructing his view.

Two people exited the car and walked across the street to Barricmans house. Holbrook later identified them as appellant and codefendant Ronny R.^[1] Ronny R. was the driver of the car and appellant was the passenger.

Barricmans house was located right next to the house directly across the street from Holbrooks house. It was a distance of about 80 to 90 feet from where Holbrook was making his observations to Barricmans front door. There were no trees or vegetation in front of Barricmans house. Holbrook saw the front door of Barricmans house open from the inside and appellant and Ronny R. entered the home. Holbrook knew that Barricman was not normally home during the day. Holbrook grabbed his telephone from the table and called 9-1-1.^[2]

When he returned to the window, Holbrook saw the individual he identified as Ronny R. enter the car, drive it into Barricmans driveway, and open the doors and trunk. Ronny R. then went back inside Barricmans house. Next, Holbrook observed appellant and a third individual that Holbrook later identified as codefendant Kevin K. exit the house carrying [v]arious bulk items . . . like suitcases. Ronny R. also exited the house with items. The burglars loaded the items into the car, making about two trips into the house. When they exited the house, the individuals came straight at [Holbrook] to get into the car, and Holbrook could see their faces clear as day.

The car then backed out of the driveway and drove off. Holbrook was able to identify a partial license plate number. Holbrook testified that about five to ten minutes passed between the time that he first noticed the car until the car left. During that entire time, he was able to observe the burglars and their activities.

When Barricman arrived home at around 6:00 p.m. on December 15, 2004, a police officer was there. The officer asked Barricman if anything was missing from his home. Barricman found that the house was ransacked. The following items were missing: an iPod; a laptop computer; a 104-piece tool kit, which was in a black, briefcase-like container; a CD and DVD player; a satellite radio; a subwoofer, which was about two-feet by two-feet in size; and two suitcases, one of which had been stored inside the other. Barricman did not notice any signs of forced entry into his home, but the back door was old and could easily have been pried open.

2. The Investigation and In-Field Identification

Late in the afternoon of December 15, 2004, Los Angeles County Sheriffs Deputy Eric Rodriguez interviewed Holbrook at Holbrooks home. Holbrook gave Deputy Rodriguez descriptions of the individuals that he observed in Barricmans home, as well as a description of the car and the partial license number.

The following day, around 11:30 a.m., Deputy Mark Wright was on patrol. He pulled into Earle Street in Rosemead, a street that he knew to be used by local drug dealers, and saw a car matching Holbrooks description parked in a driveway. The driveway was a common driveway for four residences. There was a suitcase against a wall, just to the right of the car. Deputy Wright parked his patrol car about one hundred yards from the location and waited to see if anyone would leave in the car. He remained there until about 5:30 p.m. At that time, he decided to recover the car and check for fingerprints.

As he pulled into the driveway, Deputy Wright saw appellant, Kevin K., Ronny R., and appellants older brother standing around the hood of the car. Deputy Wright knew appellants older brother from prior contacts. Appellant, his brother and Ronny R. lived in the duplexes that shared the common driveway. Appellants brother indicated that the car was his, but it was later determined that he was not the registered owner. A large black toolbox, which resembled a brief case, was open on the ground directly in front of the right fender. Deputy Wright detained the individuals and waited for backup to arrive.

Appellant and the other individuals were cooperative with Deputy Wright. Wright contacted Deputy Eric Rodriguez, who had taken the original report of the burglary, and arranged for Barricman and Holbrook to be brought to the location for a field show-up. Deputy Rodriguez informed Holbrook that deputies had found a car that matched the description he had given, and had some people detained for him to identify. Around 7:00 p.m., Deputy Rodriguez transported Holbrook, Barricman, and Barricmans girlfriend to the location in Rosemead in his patrol car.

Prior to the show-up, Deputy Rodriguez read Holbrook the sheriffs department field show-up procedure card, which indicated that just because there were people in custody, it did not mean that they were suspects, and not to form any opinion that they were guilty. Holbrook understood that he was there to make an I.D. That [he] need not feel pressured to make an I.D. If its the individuals, then it is. And if its not, its not.

The suspects were brought in front of the patrol car, one at a time, for viewing. Holbrook, Barricman, and Barricmans girlfriend remained in the car. Deputy Rodriguezs car was parked about 20 or 25 feet from the suspects. It was dark outside. The suspects were illuminated by the spotlights on Deputy Rodriguezs car, as well as a streetlight. Holbrook looked at the suspects through the front windshield of Deputy Rodriguezs car. He did not have any difficulty observing them. Holbrook viewed a total of four people. He identified the three defendants, and excluded the fourth person.^[3] Barricman was shown a suitcase, which had his name tag on it, and he identified it.^[4] The defendants were arrested.

3. The Defense Evidence

On December 15, 2004, appellant, Kevin K. and Ronny R. were students at San Gabriel High School. According to official school records, appellant and Kevin K. were in school for the entire day on December 15, 2004. The school day began at about 7:50 a.m., and ended at 2:52 p.m. School records for Ronny R. showed that he was absent fourth period, which was from about 11:04 a.m. until 12:04 p.m. He was present fifth and sixth periods.

Sabrina Morales, appellants fifth period teacher, testified that she had her own manual roll book where she would keep track of attendance. She believed that this was the only reliable method, as the computerized system was riddled with problems. Based on her manual roll book, appellant was in her fifth period class on December 15, 2004. Fifth period ran from approximately 12:54 p.m. to 1:49 p.m.

Mary Hazen was a secretary in San Gabriel High Schools guidance, attendance, and principals offices. She had worked at the school for seven years. According to Hazen, the schools attendance records were reliable, but not always accurate.

The teachers were supposed to take roll at the beginning of class and again 15 minutes later. In December 2004, they were also responsible for marking attendance on a scantron sheet, which was transmitted to the district office. When asked at the adjudication hearing, Are people who are absent marked present? Hazen answered, Yes. Ms. Hazen was also asked, [D]id it ever happen that the teacher would call and report to you that . . . [students] were here at the beginning, at 15 minutes, but they skipped class? Hazen responded, Yes. Ive had that. Quite a few times. Hazen also indicated that a teacher had told her that the teacher could not keep track of students every minute, and acknowledged that students may leave the classroom after being marked present. Despite the secure campus, which included a fence surrounding the school area as well as campus supervisors and a shuttle truck patrolling the area, Hazen stated that students leave early and sneak out, [w]e have that all the time. Hazen knew that students have attempted to leave campus and they have succeeded. And they have returned.

So. S., appellants brother, testified that the red Acura was his sisters car, but was his responsibility. His sister had three cars, and [t]hat car was for [So. and appellant] to play with. So. testified that on the morning of December 15, 2004, he lent the car to his friend B.T. T. returned the car sometime between 4:00 and 7:00 p.m. T. removed a suitcase from the car and left the suitcase in the driveway.^[5]

Appellant rested on the state of the evidence.

4. Defense Expert Testimony

Dr. Robert Shomer, an eyewitness identification expert, testified that [r]ecognition of strangers is the least reliable means of identification we have. Cross-racial identification is even less accurate, regardless of ones familiarity with the other race.^[6] Dr. Shomer opined that at a distance of 50 to 60 feet, its extremely difficult for people to pick a specific person, as opposed to somebody that looks like that person. Dr. Shomer acknowledged that a witness could be wrong about a particular detail in his description of a suspect but still be right about the identification.

According to Dr. Shomer, field show-ups are inherently suggestive, and have a very high rate of error. However, Dr. Shomer agreed with the idea that sequential presentation of the suspects, which reportedly occurred here, is better than seeing a whole group of individuals.

5. The Trial Courts Ruling

After hearing all of the evidence and argument of counsel, the trial court noted that it found Holbrooks identifications persuasive despite the expert testimony presented by the defense. The trial court stated, Although . . . I dont disagree with [Dr. Shomers] opinion, this eyewitness at the time hes making these observations, hes not doing this in a short period of time. This is over several minutes while the robbery is taking place. Hes observing them on several different occasions during all the time that this burglary is taking place. That bolsters his identification capability. The trial court further noted that the field show-up was done within a day of Holbrooks observations, and given the practical nature of police work, it was not overly suggestive. In response to the defendants arguments that Holbrooks initial descriptions of the suspects were inaccurate in certain ways, the court observed that Holbrook made a good faith identification that roughly, if not closely, identifies the three minors here today.

The court acknowledged that the school records were the best evidence that the defense has, but pointed out that theres questions about the school records. The court had to weigh that against the evidence that everyone is aware of the identification of the three minors, the minors found at the location with the car that was used in the burglary, and the stolen property outside the car. The court indicated that it did not find appellants brothers story credible, where a kid with obvious difficulties loans someone some keys and . . . this is the guy that ultimately commits the crime.^[7]

The trial court sustained the juvenile petitions against appellant, Kevin K., and Ronny R. On January 19, 2006, appellant filed a notice of appeal.

DISCUSSION

I. Sufficient Evidence Supports the Trial Courts Adjudication

A. The Substantial Evidence Standard

In reviewing the sufficiency of the evidence, our role is limited. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must determine whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) We must view the evidence in the light most favorable to the prosecution and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) Although we must ensure that the evidence is reasonable, credible, and of solid value, it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (Ibid.)

The same standard applies when assessing the sufficiency of the evidence in a juvenile proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809; In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.)

B. The Evidence

As the trial court noted, its job was to weigh the prosecutors evidence, which consisted of an eyewitness identification, evidence of appellants association with the red car, and the presence of stolen property on the driveway where appellant was detained against the alibi evidence provided by the school records and appellants fifth period teacher. Relying heavily on Dr. Shomers expert testimony, as well as the findings of the California Commission on the Fair Administration of Justice, noted in its Report and Recommendations Regarding Eyewitness Identification Procedures (released Apr. 13, 2006, hereinafter the Report), appellant argues that the eyewitness identification was unreliable.^[8] Appellant further argues that his alibi evidence, provided by the school records and his fifth period teacher, was strong and credible. Thus, appellant concludes, because Holbrooks eyewitness identification is not reasonable or solid, and in light of the strong alibi evidence, the circumstantial evidence regarding appellants association with the car and stolen goods is the only reasonable, credible evidence against appellant. Appellant argues that this circumstantial evidence is insufficient to prove his involvement in the burglary.

1. The Eyewitness Identifications

We first address appellants arguments regarding Holbrooks eyewitness identification. Appellants expert, Dr. Shomer, testified that [r]ecognition of strangers is the least reliable means of identification we have, and that it is the greatest source of wrongful convictions. This opinion is corroborated by the Report at page 2. Dr. Shomer also testified that cross-racial identifications are even less accurate or reliable than others. Again, the Report confirms this opinion. (Id. at p. 2). Because of the inherent unreliability of eyewitness identifications, and because this was a cross-racial identification, appellant argues that Holbrooks identification of the three minors should not be considered to be solid and substantial evidence.

We disagree. While the expert testimony and the Report provided by appellant send a strong cautionary message regarding eyewitness identifications, neither suggest that such evidence should never be considered reasonable, credible, or of solid value. Dr. Shomer testified that, at a distance of 50 to 60 feet, its extremely difficult for people to pick a specific person, as opposed to somebody that looks like that person. Yet he did not testify that such an identification is impossible and here, Holbrook not only had several minutes to observe the defendants, he also testified that he saw their faces clear as day. It was up to the trier of fact to consider the cautionary evidence as well as the circumstances surrounding these specific identifications.

The juvenile court did not disregard appellants expert evidence. In fact, the court noted that it did not disagree with the opinions of appellants expert witness. However, under the circumstances of this case, the court believed the eyewitness identification to be credible and reliable. The court noted that Holbrook had several minutes to observe the individuals throughout the commission of the crime, and the court felt that this span of time during which Holbrook was able to observe the defendants bolster[ed] his identification capability. Indeed, Holbrook testified that he was trying to be conscientious about what [he] was observing and thought it was important. Thus, under the circumstances of this case, we find that the eyewitness identification can be considered reasonable, credible, and of solid value.

2. Appellants Alibi Defense

Appellant next argues that appellants alibi defense was strong and credible. While the court agreed that this was the defenses best evidence, the court indicated its concerns with the schools record-keeping procedures: one teacher says he didnt take roll that period. Another teacher said that the student was absent. Another teacher said that the records were notoriously inaccurate. The court was clearly influenced by the testimony of teachers and staff who indicated that school records are not always reliable and students have been known to be marked present and subsequently found to be absent. Although he acknowledges that there was evidence that the official records were sometimes inaccurate and that teachers encountered problems dealing with the computerized record-keeping, appellant contends that the courts characterization of the school records evidence was inaccurate and unfair.

We may not reweigh the evidence. (People v. Culver (1973) 10 Cal.3d 542, 547.) Instead, we must draw inferences in support of the verdict that can be reasonably deduced from the evidence. (Ibid.) Substantial evidence, including the testimony of Mary Hazen who indicated that school records were sometimes inaccurate and that students had been known to sneak off campus, supported the trial courts decision to give little weight to the school records.^[9]

In sum, we find that the trial courts adjudication sustaining the petition against appellant is supported by substantial evidence.

II. Defense Trial Counsel Did Not Provide Ineffective Assistance

The crucial evidence presented against appellant consisted of the out-of-court and subsequent in-court identification by Holbrook. As set forth above, the out-of-court identification occurred in the driveway of appellants residence near a car resembling the one that Holbrook had observed the burglars using during the course of the robbery. Appellant acknowledges that defense trial counsel challenged the credibility of Holbrooks identification through the expert testimony of Dr. Shomer. However, appellant contends that counsels failure to move to exclude the identifications as the product of an unduly suggestive field show-up constituted ineffective assistance of counsel.

To demonstrate the ineffectiveness of counsel for failing to object to eyewitness identification evidence, the defendant must present a convincing argument that the pretrial identification procedure resulted in such unfairness that it infringed his right to due process of law. [Citations.] (People v. Nation (1980) 26 Cal.3d 169, 179.) A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 413.) An appellate courts task is thus to assess the facts and circumstances of the identifications to determine whether they were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citations.] (People v. Nation, supra, at p. 179.)

A. Under the Facts of This Case, the Field Show-Up Was Not Impermissibly Suggestive

Appellant acknowledges that a determination of whether an identification procedure is unduly suggestive depends upon the procedure used as well as the circumstances under which the identification takes place. (People v. Nguyen (1994) 23 Cal.App.4th 32, 38-39.) However, appellant argues that the in-field identification of a suspect should only be used where exigent circumstances make it necessary. In support of his argument, appellant cites Stovall v. Denno (1967) 388 U.S. 293, 302 (overruled on other grounds in Griffith v. Kentucky (1987) 479 U.S. 314 [critical condition of victim-witness made immediate hospital confrontation imperative]); and People v. Martinez (1989) 207 Cal.App.3d 1204, 1219 (in-field show-up may be valid where its purpose is the prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty). In Martinez, the Court of Appeal, Sixth Appellate District, determined that a single photo show-up was reliable and admissible under the circumstances of that case and noted that [p]rompt identification of a suspect who has been apprehended close to the time . . . of the offense . . . is a valid purpose for conducting a one-person showup [citation] and is likely to be more accurate than a belated identification days or weeks later [citation]. (Martinez, supra, 207 Cal.App.3d at p. 1219.)^[10]

In People v. Nguyen, supra, 23 Cal.App.4th 32, also cited by appellant for the proposition that field show-ups should only be used in exigent circumstances, the Court of Appeal, Sixth Appellate District, performed an analysis of whether the identification procedure used was unduly suggestive. The victim, Huong Ho, was the operator of a fashion store who was robbed at gunpoint. Shortly after the robbery took place, police saw a car which matched the description of the car involved in the robbery. Two men entered the vehicle and attempted to drive away but were detained. Ho was driven to the location and identified the men as being involved in the robbery. Like appellant here, the appellant in Nguyen argued that the out-of-court identification was impermissibly suggestive, thereby tainting the in-court identification.

The court disagreed. First, the court analyzed the procedure used. It noted that, unlike here, the witness Ho was told that the people she would be viewing were her attackers. (People v. Nguyen, supra, 23 Cal.App.4th at p. 39.) However, the court concluded that even if it were to determine that the procedure was suggestive, it would still conclude that the identification was reliable under the circumstances. In concluding that the identification was reliable, the court noted that Ho had a meaningful opportunity to view appellant at the time of the crime, and Hos degree of attention was high since there were no other customers in the store. (Ibid.)

An analysis of the procedures and circumstances used here reveals that the identification of appellant by Holbrook was less suggestive and just as reliable as the identification in Nguyen. First, while Deputy Rodriguez informed Holbrook that deputies had found a car that matched the description he had given, and had some people detained, he did not say that these were the people who did it. To the contrary, Deputy Rodriguez read Holbrook an admonition indicating that, just because there were people in custody, it did not mean they were suspects, and not to form an opinion that they were guilty. Holbrook understood that he was there to make an I.D. That [he] need not feel pressured to make an I.D. If its the individuals, then it is. And if its not, its not. In addition, given that the field show-up took place the day after the robbery, the procedure served the valid purpose of providing prompt identification close to the time of the commission of the crime.^[11] We conclude that under these circumstances the field show-up was not impermissibly suggestive.

Even assuming the field show-up was unduly suggestive we would conclude that Holbrooks identification was nevertheless reliable under the totality of the circumstances. Holbrook had a substantial opportunity to view appellant at the time of the burglary, and paid a high degree of attention during the incident. The burglary occurred in the daytime, so there was no issue as to lighting, nor was there an issue as to Holbrooks vision.^[12] Holbrook witnessed the crime through his living room window, and testified that he was trying to be conscientious because he knew his observations were important. There was nothing obstructing his view. The defendants came straight at [him] to get into the car and he could see their faces clear as day. In light of these conditions surrounding Holbrooks observations, we conclude that his identification of appellant at trial was reliable under the totality of the circumstances.

B. Appellant Was Not Prejudiced by Counsels Failure to Move to Exclude the Identifications

In order to demonstrate ineffective assistance of counsel, appellant must first show that counsels performance was deficient. We have determined that appellants counsel was not deficient because the pretrial identification procedure did not result[] in such unfairness that it infringed [appellants] right to due process of law. (People v. Nation, supra, 26 Cal.3d at p. 179.) However, even if we had determined that appellants trial counsels representation fell below objective standards, appellant must still show prejudice flowing from his counsels performance. (In re Thomas (2006) 37 Cal.4th 1249, 1256.) To show that ineffective assistance of counsel was prejudicial, appellant must demonstrate that there is a reasonable probability that, but for counsels errors, the results of the trial could have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) We find that appellant has failed to show such prejudice.^[13]

Appellant acknowledges that his trial counsel challenged the credibility of Holbrooks identification through the testimony of Dr. Shomer, a psychologist with special expertise in the area of eyewitness identification. Counsel also extensively examined Holbrook and Deputy Rodriguez regarding the circumstances of the show-up.

In addition, the juvenile court specifically expressed its position regarding the field show-up procedure. The court considered the defense experts testimony regarding the reliability of such identifications, and expressed some general agreement. However, under the circumstances, the trial court expressly found that the show-up was not overly suggestive. The trial court noted that the field show-up occurred within a short time after the burglary. The court continued, Its certainly not ideal. Ideal would have been as the expert testified. But given the practical nature of police work, an admonition was read. I dont believe the witnesses were suggesting one person over another. Thus, the record reveals that even if defense counsel had moved to exclude Holbrooks identifications, the trial court would have denied such a motion.

DISPOSITION

The trial courts order sustaining the petition against appellant is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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^[1] Appellant was tried with codefendants Kevin K. and Ronny R. The petition was also sustained as to these two codefendants. They are not parties to this appeal.

^[2] Holbrook made the rest of his observations while on the phone with the 9-1-1 operator.

^[3] Five days later, when interviewed by Sheriffs Detective Craig Johnson, Holbrook stated that he was 90 percent sure of his identifications.

^[4] At the time of the identification, the tool box which Deputy Wright had previously observed on the ground in front of the car had been moved. Deputy Wright knocked on the door of one of the residences in an attempt to locate it. When the door opened, Deputy Wright saw the tool box inside the doorway. Deputy Wright did not seize the tool box because the people who opened the door said it belonged to them, and Deputy Wright did not have information that it may have belonged to Barricman.

^[5] On June 15, 2005, Sheriffs Detective Craig Johnson showed Holbrook a six-pack photo display which contained a picture of Billy Tran for the purpose of including or excluding Billy Tran as a suspect. Billy Trans photograph was at position number two. None of the defendants was included in the six-pack. While Holbrook noted that certain other individuals resembled the burglars, he stated that the individual in photograph number two was definitely not involved.

^[6] Holbrook is white and appellant is Cambodian-American.

^[7] Appellants older brother, who told the court that he had lent the car to Billy Tran on the date of the crime, apparently has some unspecified disabilities.

^[8] Appellant asked this court to take judicial notice of the Report. We granted appellants request on September 11, 2006.

^[9] Appellant argues in his reply brief that the school records are official state records entitled to a presumption of correctness under Evidence Code section 664. Appellant has provided no case law supporting this proposition, nor any citation to the record indicating that this argument was raised before the trial court. We therefore do not address this argument. We note, however, that the trial court could reasonably have found the evidence that the attendance records were not always reliable, in combination with the other evidence against appellant, overcame any such presumption under the circumstances of this case.

^[10] Appellant also cites Foster v. California (1969) 394 U.S. 440, in which the United States Supreme Court determined that the lineup procedures used in that case were unfair. However, the circumstances present in Foster were very different from those present in the case before us. In the first lineup arranged by police, the petitioner stood out by the contrast of his height and the fact that he wore a leather jacket similar to that worn by the robber. When that did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. Even after this, the witness identification was tentative. Some days later another lineup was arranged in which petitioner was the only person who had also participated in the first lineup. This finally produced a positive identification. (Id. at p. 443.)

^[11] Appellant points out that the suspects were handcuffed, but concedes that being handcuffed alone is not necessarily unduly suggestive. (See In re Carlos M. (1990) 220 Cal.App.3d 372, 386 [the mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification].)

^[12] Holbrook did not wear corrective lenses.

^[13] Appellant asks that we apply the federal constitutional standard set forth in Chapman v. California (1967) 386 U.S. 18 in assessing prejudice. Under that standard, errors that violate the federal constitutional rights of a defendant are prejudicial unless the beneficiary of the error can prove beyond a reasonable doubt that it did not affect the result. We decline to apply this standard, as both California cases cited by appellant involved an accuseds constitutional right to counsel. (See People v. Bustamante (1981) 30 Cal.3d 88, superseded by constitutional amendment as stated in People v. Johnson (1992) 3 Cal.4th 1183, 1222-1223; People v. Sharp (1983) 150 Cal.App.3d 13, overruling recognized in People v. Clair (1992) 2 Cal.4th 629, 658.)