P. v. Hernandez

Filed 9/6/07 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, and Brook Benningson, Deputy Attorneys General for Plaintiff and Respondent.

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Appellant Jose C. Hernandez was convicted by jury of driving under the influence of alcohol and causing bodily injury to three persons (Veh. Code, 23153, subd. (a)), receiving stolen property (Pen. Code, 496d, subd. (a)), and leaving the scene of an injury accident (Veh. Code, 20001, subd. (a)). The court imposed a 28 month prison term as follows: the 16-month mitigated term for driving under the influence, an additional year pursuant to Vehicle Code section 23558 for causing injury, and two concurrent 16 month mitigated terms for receiving stolen property and leaving the scene. On appeal, Hernandez contends his counsel provided ineffective assistance by not moving to exclude a victims in-court identification that was tainted by unduly suggestive pretrial identification practices. The People contend there is sentencing error requiring remand. We find no merit to either contention and will affirm.

FACTS

On May 9, 2004 about 10 p.m., a maroon Ford F-150 pickup crossed the median line on Conejo Avenue in Kingsburg and collided with a 1974 Volkswagen Beetle. Michael Pardo Sr. (Pardo), the driver of the Volkswagen, was driving his son, Michael (Michael), home from work. There were no street lights but the collision occurred near at least one farmhouse that was illuminated with flood lights. The vehicles came to rest about 20 to 25 feet apart.

Pardo blacked out briefly. When he awoke, he saw the driver of the truck, whom he identified as Hernandez, trying to get out of the truck. Hernandez got out of the truck, walked around it to check on his passenger and then approached Pardos truck. Hernandez was within 5 to 10 feet of Pardos car for 30 to 45 seconds. When Hernandez saw that he and Michael were moving, he walked away quickly in an easterly direction.

Hernandezs passenger, Maria Romero, approached Pardos car and asked if they were okay before collapsing. She suffered an injury to her ribs and was hospitalized overnight. When Pardo tried to get out of the car, his leg snapped and he was unable to move. Another motorist stopped and loaned Pardo his cell phone to call 911. Pardo and Michael were taken by ambulance to UMC. Pardo suffered severe fractures of his leg and hip that necessitated the insertion of a rod and 17 screws and resulted in a permanent limp. Michael suffered a fractured hip and was hospitalized in traction for a month.

By the time California Highway Patrol (CHP) officers arrived at the scene, the driver of the pickup was gone. Officers searched the truck and found Hernandezs checkbook, business cards, two cell phones, and a farm labor contractor photo ID. They also discovered the license plates did not match the pickup. The plates were registered to a 2001 truck leased to Hernandez. The pickup was registered to a Dinuba owner, and had been reported stolen in 2003.

Later that night at the hospital, Officer Erickson showed Pardo the photo ID found in the truck and asked him if the photo depicted the driver. Pardo identified Hernandezs photo as the driver. He described the driver as about 5 feet 4 inches tall, 240 to 260 pounds, stocky, and wearing dark clothing. Pardo had been able to see the man clearly because the windshield had popped out of his Volkswagen.

Romero, the passenger in the pickup, testified that she, Hernandez, and an individual she knew as Martin had been drinking at a ranch in Caruthers. She left the ranch with Martin because Hernandez would not drive her home. She fell asleep while Martin was driving. When she awoke after the collision, Martin was gone. Officer Erickson testified that Romero initially said that Martin was driving but later, at the hospital, said that Hernandez was driving. Romero also told Officer Erickson the maroon pickup belonged to Hernandez and he had had it for almost a year. At trial, she testified Hernandez had had the pickup for only a couple of days.

About 11:45 p.m., officers went to Hernandezs house but were told by his son that he was not at home. The officers told the son to have Hernandez call the CHP. They parked down the street for about half an hour, but did not see Hernandez return. Hernandez called the next day and Officer Erickson, with Officer Munoz translating, interviewed him that evening.

Hernandez told Officer Erickson that on May 7, 2004, he had met a man from Los Angeles at a local market who had offered to sell him the maroon pickup. Hernandez gave the man, whose name he did not know, a down payment. The man removed the license plates on that truck, so Hernandez replaced them with plates from a truck he had leased. He also placed his personal belongings in the pickup because the lease was about to expire on his other truck. Hernandez and his girlfriend Romero had been at a ranch in Caruthers that day eating and drinking. A man named Martin was also there to help Hernandez clean portable toilets. All three drank heavily and Hernandez fell asleep. He refused Romeros request that he drive her home so Martin left in the maroon pickup with Romero. Hernandez described Martin as a tall, skinny Hispanic male with a long pony tail. Hernandez awoke about 11 p.m. when his wife called. He drove home and arrived between 11:30 p.m. and midnight. Hernandez had abrasions on his forearms and right shin.

A month later, Officer Erickson showed Pardo a photo line-up containing six pictures including one of Hernandez taken the day after the collision to confirm the identification. She admonished Pardo to identify the driver of the pickup if he could and let her know if he could not identify anyone. Pardo identified Hernandezs photo in the lineup.

Defense

Hernandez testified he had an option to buy the maroon pickup. He and the individual who had offered to sell the truck were going to finalize the transaction later that week. He had no idea it was stolen. On the day of the collision, he had met an individual he knew as Martin at a store in Selma. Martin offered to help Hernandez clean the portable toilets he used in his business if Hernandez would buy Martin beer. Hernandez agreed and bought a 12 pack of beer. Later that morning, Hernandez took his girlfriend Romero to the ranch where Martin was cleaning toilets, stopping to pick up more beer on the way. The three drank until late in the evening.

Hernandez refused Romeros request that he drive her home because he was too drunk to drive. He fell asleep in the cab of his brown truck and did not awaken until 9 a.m. the next day. When he awoke, Romero, Martin and the maroon pickup were gone. Family members told him the highway patrol was looking for him so he and his son drove to the CHP office. He was told to return home and officers would contact him. He did not transfer the license plates from the leased truck to the maroon pickup; Martin did.

Hernandez testified that he did not communicate well with officers Munos and Erickson because he did not understand Munoss translation. He did not remember what they asked him or how he responded.

Romero and Hernandez both identified a picture depicting Martin. The parties stipulated that the picture depicted Jorge Elias Perez, who was known as Martin, and that he was now deceased.

DISCUSSION

1. Ineffective Assistance of Counsel

Hernandez contends the unduly suggestive pretrial identification procedures tainted the in-court identification, in violation of his due process rights. Thus, his trial counsels failure to move to exclude the in-court identification constituted prejudicial ineffective assistance. We disagree.

An appellant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings. (People v. Cudjo (1993) 6 Cal.4th 585, 615.)

An appellant seeking to demonstrate ineffective assistance in not objecting to identification evidence must show the pretrial identification procedure resulted in such unfairness that it infringed his right to due process. (People v. Nation (1980) 26 Cal.3d 169, 179.) On appeal, we assess the facts and circumstances to determine whether the identifications were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Ibid.)

Hernandez relies on People v. Nation, supra, 26 Cal.3d 169 where the court found grounds for reversal. There, the sole issue at trial was the identification of the perpetrator who had threatened three girls with a gun and molested one. Two weeks after the event, the girls viewed photographs at the police station. One of the girls selected Nations mug shot. She told the others that she had identified the assailant and, after some discussion, the other girls agreed. An officer gave the girls the mug shot to take home to show other possible witnesses. Almost four months later, the girls failed to identify Nation in a live lineup, instead identifying another individual. They were told they had selected the wrong man. (Id. at p. 174.)

The court held that the photographic identification evidence was so extraordinarily suggestive that it was doubtful that the prosecutor could have submitted it over the timely objection of trial counsel. Thus, defense counsels failure to object deprived Nation of constitutionally adequate assistance. (People v. Nation, supra, 26 Cal.3d at pp. 174, 179-181.) The circumstances surrounding Pardos identification of Hernandez as the driver, however, are materially distinguishable.

In determining whether the admission of identification evidence violates a defendants due process rights, 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, including such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (People v. Huggins (2006) 38 Cal. 4th 175, 243.)

Consideration of those factors in this case yields the following. First, the use of the single labor contractor ID photo found in the truck was not unduly suggestive. An identification procedure is impermissibly suggestive if it caused the accused to stand out from others in a way that suggested the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367.) Here, nothing Officer Erickson did in showing Pardo and Michael the identification card found in the pickup suggested that either should answer affirmatively when asked if the photo depicted the driver. In fact, while Pardo identified the individual depicted as the driver, Michael did not. He had not been able to see the driver because his glasses had been dislodged in the collision.

The use of the single photo was also necessary under the circumstances. Single-person show-ups for in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. (In re Carlos M. (1990) 220 Cal. App. 3d 372, 387.) Here, Officer Erickson used the photograph found in the truck in order to identify the driver who had fled the scene. Officer Erickson wanted to determine whether the man depicted was involved so officers could quickly contact him and determine whether he was driving under the influence by obtaining a blood alcohol level before such evidence dissipated.

Finally, the circumstances surrounding Pardos pretrial identification support a conclusion of reliability. Pardo viewed the driver of the pickup for two to three minutes immediately after the collision. The area was dark but a nearby farm house was flood-lighted. Pardos view was clear because his windshield had popped out with the impact and Hernandez approached to within 5 to 10 feet of Pardos car for 30 to 45 seconds. While Pardo testified he had blacked out upon impact, there was no evidence he was unable to attend while Hernandez approached his car. The record is unclear as to whether Pardos verbal description of the driver as 5 4, 240 to 260 pounds, stocky build, which apparently described Hernandez, came before or after he identified the photo ID of Hernandez as the driver. However, Pardo did not waiver in his identification of Hernandez as the driver and he identified a picture of Hernandez as the driver within hours of the collision. Under these circumstances, Pardos identification of Hernandez as the driver was reliable.

Hernandez also contends the photo lineup identification a month later was unduly suggestive because it was composed of photographs the officer had just picked up from the office and the photographs were not all of the same ethnicity.^[1] Hernandez does not explain how either factor made the procedure unduly suggestive. And, at trial, Pardo testified he identified Hernandez not by the photographs he had seen but by Hernandezs facial features that he remembered from the accident.

Hernandez points to circumstances that he contends weaken the reliability of Pardos identification: Pardo was shown only one photo at the hospital, he had blacked out upon impact, and he misidentified the color of the pickup.) Hernandez argues that Pardos opportunity to view the driver and his degree of attention are highly suspect, and his physical description of the driver must have followed his viewing of the photo identification card. Finally, Hernandez selectively sites to the record in arguing that Pardo saw the driver for just a few seconds ignoring the persuasive evidence set forth above to the contrary. None of these circumstances considered in light of the factors showing reliability give rise to a substantial likelihood of misidentification. (People v. Nation, supra, 26 Cal.3d at p. 179.)

Hernandez has failed to show that the identification procedures were impermissibly suggestive, thus, his attorney had no duty to object to the in-court identification, and we reject his ineffective assistance of counsel argument (see People v. Anderson (2001)25 Cal.4th 543, 587; Civ. Code, 3532).

2. Sentencing under Vehicle Code section 23558

In footnote 2 of the respondents brief, the People contend the matter should be remanded because the court failed to impose or strike with reasons stated a second one year enhancement under Vehicle Code section 23558 for the third victim injured. (RB p. 2) Hernandez responds, among other things, the court struck the additional punishment.

Vehicle Code section 23558 states:

Any person who proximately causes bodily injury to more than one victim in any one instance of driving in violation of Section 23153 of this code , shall, upon a felony conviction receive an enhancement of one year in the state prison for each additional injured victim.. [ ] the court may strike the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.

At sentencing, the court and counsel noted that the probation report mistakenly reported that Hernandez had injured three victims within the meaning of Penal Code section 12022.7. The court stated that the jury made no findings under that section. Rather there was an enhancement for an additional victim under [Vehicle Code section 23558]. And, it was alleged in the information and the jury found that the defendant injured more than one victim pursuant to Vehicle Code section 23558. This enhancement probation uses the word mandates and Im not sure thats true, mandates that the defendant serve an additional year, I believe it is. And then Ill strike the rest of it. Is that accurate ? Both counsel responded affirmatively.

Subsequently, the court imposed the mitigated 16 month term for violation of Vehicle Code section 23152, and an additional year for the injuries to Michael under Vehicle Code section 23558.

Hernandez submits the courts statement quoted above shows the court struck the additional term. A more reasonable interpretation is that the court struck the remainder of the erroneous paragraph in the probation report. However, other court-made corrections in the probation report and the courts statement at sentencing emphasizing the 48-year-old defendants lack of a prior record, establish that the court intended to impose only one enhancement under section 23558 and to strike the other. Consequently, we decline to remand the case where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.)

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., Kane, J.

^[1] Apparently, most photos depicted Hispanics but one photo may have depicted a Caucasian.