Filed 6/28/17 P. v. Ngo CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

QUY NGOC NGO,

Defendant and Appellant.


G053329

(Super. Ct. No. 15WF2037)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christine Bergman, and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Quy Ngoc Ngo of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c) [count 1]; all statutory citations are to the Penal Code)). The jury also found Ngo committed the robbery against a victim he knew or should have known was 65 years of age or older (§ 667.9, subd. (a)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Ngo contends trial counsel performed ineffectively by failing to seek suppression of the victim’s pretrial field identification, which he argues violated his due process rights because it was the product of impermissible suggestion. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of September 12, 2015, 78-year-old H.P. was at a Westminster park with his wife, T.C. While H.P. was in a public restroom, a stranger approached him as he stood at the urinal, punched his face with closed fists, kicked him in the ribs, and stole a satchel H.P. wore around his neck. The satchel held his wallet containing some $400, which a police officer later returned. Police officers summoned an ambulance and H.P. was transported to the hospital. He suffered a subdural hematoma, requiring brain surgery, and spent at least two weeks in the hospital and nursing home. H.P. saw the man’s face and remembered it on the day of the robbery, but not later when he testified at trial. Nor did he recall providing a description of the man to the police officer. He remembered the ambulance stopped somewhere near the park, the police officer asked if he recognized the person who assaulted him and he responded affirmatively.
T.C. testified she and H.P. were waiting in the park for a bus when she spotted a Vietnamese man in a red tank top follow H.P. into the restroom. The man existed the restroom and left on his bike. She knocked on the bathroom door, but received no response. Another man entered the restroom and returned to report that H.P. was bleeding. When assisting H.P. out of the restroom, H.P. asserted the man in the red tank top hit him and stole his money. Medics on the scene placed H.P. in an ambulance for transportation to the hospital, but stopped at a restaurant because the police wanted to know whether H.P. could identify Ngo, who was handcuffed. T.C. identified Ngo in court as the man wearing the red tank top that she saw at the park. Since the robbery, H.P. can no longer hear out of one of his ears, and he gets “confused of everything.” T.C. had seen Ngo at the park before the robbery. He had been bothering another lady.
Westminster Police Corporal Phuong Pham received a dispatch concerning the robbery. It described the suspect as a male Asian, possibly Vietnamese, wearing a red tank top and riding a bike northbound from the park on Belgrade Street. About two or three minutes after the dispatch, Pham was traveling eastbound on Bolsa Avenue approaching Brookhurst Street when he spotted a person matching the description riding a bike toward him. This location was a few hundred yards from the park.
Pham got out of his car, stood on the sidewalk, and drew his handgun. He pointed his weapon at the person on the bike, later identified as Ngo, and ordered him to get off his bike and on the ground. Ngo briefly stopped his bike, but did not comply, and rode his bike into a business complex. Pham pursued him and ultimately knocked Ngo off his bike. Pham summoned assistance, and he and Officer Steven Eifert managed to handcuff Ngo after a struggle.
Eifert testified Ngo wore a red tank top and rode a blue mountain bike, matching the information he received from dispatch. Eifert found various items in Ngo’s pockets, including H.P.’s light-colored satchel, which contained H.P.’s wallet and identification. Ngo had a mostly full backpack containing clothing and food items. Based on their brief conversation, Ngo appeared to understand English.
Pham left Ngo with Eifert, and went to the park to speak with H.P. and T.C. H.P. said the robber came up behind him and said, “[l]et me search you” in Vietnamese. The man choked him and grabbed the satchel from around his neck. He resisted, and the man punched him many times, and he finally let go of the satchel. H.P. said he “just saw him in a flash,” but he would be able to identify him. He described him as a “pretty big” Vietnamese male in his 40’s, about five feet 10 inches, who wore a red tank top, and had a bike and a dog. After reviewing a transcript of the taped joint interview with H.P. and T.C., Pham said H.P. responded he was “not clear” on the color of the assailant’s shirt, the assailant had black hair, he was “six feet or five feet something,” and H.P. did not know how old the man was. He did not mention the man having any tattoos, glasses or missing teeth.
T.C. said she was sitting on a bench about 50 feet from the restroom at the time of the robbery. T.C. “saw the man in the red shirt” run in and out of the restroom. The man had a dog and a bike. She said she knew this “was the guy” because H.P. had described the assailant to her after he came out of the restroom. Before the incident, the man had acted inappropriately with another lady in the park, and also had sat next to and bothered T.C.
Pham rode in the ambulance with H.P. and T.C. to Ngo’s location. Pham read an in-field showup identification admonishment, telling H.P. and T.C. the person detained might or might not be the assailant, the use of handcuffs did not mean the person was involved, and it was just as important to free an innocent person as to identify the perpetrator. Officer Eifert walked Ngo behind the ambulance so H.P. could see out the back window from a distance of about 12 feet. H.P. was not certain if Ngo was his attacker, and asked about his wallet. Pham told him not to worry about the wallet and to look at Ngo’s face. Pham told the other officer to bring Ngo closer. At this point, T.C. interjected “that’s him” before H.P. could answer. Pham said “[w]ait, ma’am, please don’t say anything.” H.P. then said “it’s him.” Pham asked again if that was “the guy who attacked you and took your wallet.” H.P. said the “wallet’s in his pocket.” Pham said “[p]lease listen to me. Is this the guy? The guy who attacked you and took your wallet?” H.P. said “[i]t’s highly likely. I just saw him in a flash. But if you find my wallet, then it must be him.” H.P. also said that his face “looks like it,” and estimated he was 80 percent certain. H.P. subsequently identified his satchel and wallet containing his identification card and $408. Pham ordinarily transported a witness to a field showup separately, but made an exception because they were in the ambulance, and he did not believe T.C. was a witness. Pham estimated Ngo’s height in court at five feet seven or eight inches. Ngo was 52 years old at the time of trial.
Following trial in January 2016, the jury convicted Ngo as noted above. In March 2016, the trial court imposed a seven-year prison sentence, comprised of the three-year midterm for robbery, a consecutive three-year enhancement for personally inflicting great bodily injury, and a consecutive one-year enhancement due to the victim’s age.
II
DISCUSSION
Ineffective Assistance of Counsel
Ngo contends his trial attorney performed ineffectively by failing to ask the trial court to suppress H.P.’s in-field identification. He asserts the identification was the product of a suggestive and unreliable showup procedure: “In this case, H.P. could not identify appellant as his assailant despite the fact that appellant was in handcuffs and next to two police officers. He only identified appellant after his wife blurted out, ‘That’s him.’”
To establish a claim of ineffective assistance of counsel, a defendant must show counsel’s representation failed to meet an objective standard of professional reasonableness, which prejudiced the defendant. In other words, absent counsel’s deficiencies, there is a reasonable probability the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 689, 691-692 [reasonable probability means sufficient to undermine confidence in the outcome; scrutiny of counsel’s performance is highly deferential without distorting effects of hindsight and court indulges strong presumption counsel’s conduct falls within the wide range of reasonable professional assistance]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where the record on appeal does not contain an explanation for the alleged errors, the court must reject the claim unless there could be no satisfactory explanation for counsel’s conduct].) Counsel is under no obligation to raise meritless objections. (People v. Lucero (2000) 23 Cal.4th 692, 732.)
A due process violation occurs when the identification of the defendant is the product of an unduly suggestive identification procedure, and the identification is not otherwise reliable under the totality of the circumstances. (People v. Clark (2016) 63 Cal.4th 522, 556.) The first step is to determine whether the police employed a procedure that suggested the identity of the person suspected in advance of the witness’s identification. (People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa ) [“the state must, at the threshold, improperly suggest something to the witness”].) The second step requires the court to determine whether the identification was nonetheless reliable under the “‘totality of the circumstances.’” (Id. at p. 412.) Factors include the opportunity of the witness to view the suspect at the time of the offense, the witness’s 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. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of satisfying both steps. (Ibid.) A “‘“single person showup”’” is not inherently unfair or suggestive. (Ochoa, supra, 19 Cal.4th at p. 413; cf. United States v. Wade (1967) 388 U.S. 218, 228 [noting the “vagaries of eyewitness identification”].) The element of suggestiveness in a showup procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind. (People v. Garcia (2016) 244 Cal.App.4th 1349, 1359.)
Here, the identification procedure Pham used was not unduly suggestive or unnecessary in light of the circumstances. There was nothing improper about Pham’s decision to give H.P. the opportunity to either identify or eliminate Ngo as the assailant while the attack was fresh in H.P.’s mind. Pham admonished H.P. that the person detained might or might not be the assailant, and it was just as important to free an innocent person as it was to apprehend the guilty. Pham had no reason to anticipate T.C.’s spontaneous comment identifying Ngo. Despite her comment, H.P.’s identification was reliable and not the product of an unduly suggestive identification procedure. H.P. viewed his assailant at close range during the struggle for H.P.’s property. H.P.’s description of the robber was accurate, as was H.P.’s assertion the robber, dressed in a red tank top, rode a bike and was accompanied by a dog. H.P. informed Pham he was 80 percent certain Ngo was the culprit, and the reliability of H.P.’s identification was enhanced by its proximity to the assault. Under these circumstances, Ngo’s attorney reasonably could conclude an objection to the identification would have been meritless.
In any event, even if the trial court might have granted a motion to suppress the identification, a better result for Ngo was not reasonably probable. (Strickland, supra, 466 U.S. at pp. 694-695.) Police apprehended Ngo with H.P.’s property a few minutes after the robbery and a short distance away from the park. Nothing supported defendant’s testimony he acquired the property after the robbery. Ngo generally matched the description of the suspect contained in the dispatch, which was based on information provided by H.P. and T.C. before the allegedly tainted identification. Ngo attempted to flee from Officer Pham, and resisted detention. Evidence of Ngo’s guilt was overwhelming.
 
III
DISPOSITION
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.