Filed 7/11/17 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DANNY RAMIREZ,

Defendant and Appellant.


E065482

(Super.Ct.No. FSB1404767)

OPINION


APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed.
Thomas K. Macomber, 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, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
On a single day in September 2014, defendant and appellant Danny Ramirez participated with his cohort Carlos Chavira in armed robberies of two Metro PCS cellular stores. Defendant was found guilty of four counts of second degree robbery (Pen. Code, § 211) for his involvement in the two separate robberies. In addition, for each of the four counts, the jury found true the special allegation that a principal was armed with a firearm during the commission of the crime (§ 12022, subd. (a)(1)). Defendant was sentenced to a total term of nine years four months in state prison.
Defendant makes one claim on appeal, that the trial court’s denial of his motion to exclude evidence of the pretrial identifications and subsequent in-court identifications for one of the robberies violated his state and federal Constitutional rights to due process and a fair trial, requiring reversal of two of his robbery convictions.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST ROBBERY
On September 30, 2014, Jessica Negrete worked as the assistant manager of the Metro PCS store on Mount Vernon Avenue in San Bernardino. Vanessa Orozco was also working that day. Negrete arrived at 9:45 a.m. to open the store. She took the cash box out of the safe; it contained $300. She put the cash into the cash register.
The store opened as usual at 10:00 a.m. A few customers came into the store and paid their bills. Negrete intended to place the extra money they received into a safe box called a Dunbar box. The Dunbar box was cemented to the floor. As she was dropping the money, two men came into the store and approached the front counter. Both Negrete and Orozco were behind the counter.
One of the men asked for the manager, who was attending a meeting outside the store. Orozco told them the manager was not there and Negrete asked what they needed. The man closest to Negrete was heavyset and wearing a baseball hat with a letter on it. He also was wearing jeans. He was later identified as Carlos Chavira. The other man, who was later identified as defendant, was standing right behind him and was wearing a beanie. He was also heavyset. At that point, when Negrete and Orozco told them the manager was not in the store, Chavira walked behind the counter and pointed a gun at Negrete and Orozco. Defendant remained on the other side of the counter.
Chavira pointed the gun at Negrete’s face and demanded cash from the register. Negrete was in shock. Chavira told her that if she did not give him the “fucking money” he would blow her “fucking brains out.” Orozco told her to give him the money. Negrete pulled out the cash slowly hoping that her manager would arrive soon and help them. She gave Chavira approximately $300 and he put it in his pocket.
Chavira asked where the safe was located and they told him in the back. Chavira forced them into the back and told them to get the phones out of the safe. Negrete testified the more expensive phones were kept in the safe rather than displayed in the store. Orozco and Negrete handed Chavira some of the less expensive phones and he demanded to be given the more expensive phones, threatening them again that he would blow their “fucking” brains out. They handed Chavira at least seven Huawei Mates phones, which were the most expensive phones in the safe. Each phone was worth approximately $300.
They all walked back to the front of the store. The manager then arrived. Chavira threatened the manager that he better not do anything or he would “blow his brains out.” Defendant had remained at the front of the store. Both Chavira and defendant walked out of the store. Defendant did not have a gun.
Security surveillance at the store was shown to the jury. A still photograph showed defendant wearing a beanie pulled down just above his eyes. The bottom of his face was clearly visible. The events in the back room were also depicted on the video.
Orozco called 911 and gave them a description of the two men. She described the two men as Hispanic males. One was in his “thirties” and another was in his “forties.” She said Chavira was wearing a black baseball cap; he was armed with a silver handgun. She described defendant as wearing a beanie, a black shirt and jeans. He was “chubby.”
San Bernardino Police Officer Dennis Han responded to the call of the robbery at the Metro PCS store. When he arrived, Negrete and Orozco were present. Orozco told him $400 in cash and 10 cellular telephones valued at $3,000 were taken. She described one of the men as being in his forties, Hispanic, six feet tall and wearing a beanie.
San Bernardino Police Detective Dennis Houser was called to investigate the robbery at the Metro PCS store. Detective Houser went to the store on October 6 to show Negrete and Orozco two six-pack photographic lineups he had prepared. Detective Houser gave them the standard admonition, that they were not to identify anyone unless they were certain it was the suspect.
Neither Orozco nor Negrete identified Chavira. Defendant was in position three of his lineup. Orozco and Negrete both identified defendant. Defendant was 43 years old. Negrete chose defendant’s photograph because she “thought [he] was one of the guys.” Negrete and Orozco identified defendant in court.
Chavira’s car was searched on October 6. Officers found a dark-colored baseball hat with the letter “C” on the front. They also found sunglasses. A silver handgun was found under the driver’s seat. A search of Chavira’s home resulted in finding of 15 to 20 cellular telephones still in their boxes. The majority of the phones were Huawei Mates brand. Negrete was able to identify the gun and baseball hat found in Chavira’s car as similar to the ones used during the robbery.
B. SECOND ROBBERY
On September 30, 2014, Crystal Ochoa was the manager of the Metro PCS store located on Holt Boulevard in Ontario. She opened the store at 10:00 a.m. and another employee, Lladira Castillo, came into the store right around noon. There was $300 in the cash register at the start of the day.
A man, later identified as Chavira, who was wearing a hat and hoodie over his hat, came into the store just after noon and asked for the manager. Ochoa was about to drop money into the Dunbar box because there was $500 in the register. Ochoa identified herself as the manager. Chavira came behind the register and told her he was there to rob the store. Chavira pulled out a small silver handgun. Ochoa took all the money out of the register and threw it on the counter. Chavira grabbed it and put it in his pocket. Chavira then directed Ochoa and Castillo to the break room.
The safe in the break room was already open. Chavira ordered Castillo and Ochoa to the ground and then reached into the safe and took two Samsung Galaxy phones each worth $549. Chavira also took a key to the store, one to the safe and the personal phones belonging to Ochoa and Castillo.
Another man, later identified as defendant, entered the break room. He was heavier than Chavira and was wearing a beanie. He leaned in the safe and took phones out of the safe. Two of the phones were Huawei Mate phones each worth $300. Defendant then walked out of the store. Chavira threatened them not call the cops or he would come back after them.
Video surveillance at the store was played for the jury, and still photographs of defendant and Chavira were shown to the jury. Ochoa was shown two six-pack photographic lineups. Ochoa identified Chavira and defendant. Ochoa could not identify defendant in court. In court, defendant looked familiar to Ochoa but she was not certain he was the man in the beanie that day.
Castillo identified defendant in court as the second man and from the six-pack photographic lineup. She also identified Chavira. Castillo identified the handgun as small and silver.
Defendant’s backpack was searched when he was arrested. It contained a XXL blue sweatshirt. No beanie was found.
DISCUSSION
Defendant asserts that the admission of the six-pack photographic lineup identification by the victims of the first robbery, Negrete and Orozco, violated his state and federal Constitutional rights to due process and a fair trial, and tainted the in-court identifications.
A. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant brought a motion to exclude evidence of the photo lineup identifications (Motion). Defendant argued that in the photographic lineup shown to Negrete and Orozco, the victims of the first robbery, he was the only one wearing a bright blue shirt and was the only one in the lineup with chin facial hair. A different lineup was shown to Ochoa and Castillo, the victims in the second robbery. In that lineup, defendant and two others were shown wearing dark shirts. One or two of the other persons in the lineup had facial hair similar to defendant. Defendant argued that the lineups created a substantial likelihood of misidentification. Further, it was a “forgone conclusion” that once the witnesses saw these lineups, they would identify defendant in court.
The matter was heard prior to trial. The trial court noted it had read the Motion and looked at exhibit Nos. 8, 9, 10 and 11. Defendant’s counsel explained that exhibit Nos. 10 and 11, the lineups shown to Negrete and Orozco, showed defendant in a blue shirt. Three other persons in the lineup had black shirts on and one other had a white shirt. The final person had on a blue plaid shirt. The blue shirt that defendant was wearing was impermissibly suggestive. Further, the photograph of defendant showed he had facial hair, which included a thin mustache, a tuft of hair underneath his lip and hair on his chin. Only one other person in the lineup had similar facial hair.
Defendant made additional arguments about exhibit Nos. 8 and 9 that are not relevant here. Defendant’s counsel also noted there were stills taken from surveillance video and the facial hair was similar to the photograph. Defendant being the only one with distinctive facial hair was a problem.
The prosecutor responded that defendant had not proven that the identification in both of the lineups was unduly suggestive.
The trial court first stated, “Turning my attention first to Exhibits 10 and 11, these are the blue shirt six-pack. I don’t find that the defendant’s photograph really stands out or pops in any way. In fact, my eye was drawn to number 5, even though his shirt appears to be dark colored, just his facial expression is odd. So that is the first picture I noticed. [¶] It appears in both Exhibits 10 and 11 that there are general similarities with all six of the individuals. They are all approximately the same age, the photographs are approximately the same size, even the shape of their heads are approximately the same, the same race or ethnicity. The fact of the matter is they all have facial hair to one extent or another.” The trial court noted that it would be impossible to find facial hair that was identical. The trial court concluded, “I don’t find this lineup to be in any way suggestive, so the motion is denied with regard to 10 and 11.”
After the presentation of evidence, the jury was instructed on eyewitness testimony. The jury was advised to consider how well the witness could see the perpetrator; how closely the witness was paying attention; was the witness under stress; did the description given after the crime match defendant; did the witness ever fail to identify defendant and did the witness ever change his or her mind about the identification; and was the witness able to identify defendant in a photographic lineup.
B. ANALYSIS
“[A] violation of due process occurs if a pretrial identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” (People v. Sequeira (1981) 126 Cal.App.3d 1, 12, quoting Simmons v. United States (1968) 390 U.S. 377, 384.) The defendant has the burden of showing that the identification procedure was so unfair that it violated his due process rights. (People v. Lucas (2014) 60 Cal.4th 153, 235 (Lucas), overruled on another ground in People v. Romero (2015) 62 Cal.4th 1, 53 fn. 19; People v. Sanders (1990) 51 Cal.3d 471, 508.)
“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, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the accuracy of his or her 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; see also Lucas, supra, 60 Cal.4th at p. 235.)
“The question is not whether there were differences between the lineup participants, but ‘whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’” (People v. Avila (2009) 46 Cal.4th 680, 699.)
“We review deferentially the trial court’s findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.” (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
Defendant has not met his burden of demonstrating the photographic lineup was unduly suggestive. He contends that the bright blue shirt he was wearing in the photograph distinguished him from the other participants in the six-pack photographic lineup. However, the participant in photograph No. 1 was wearing a white shirt, which also stood out. Further, the plaid shirt in photograph No. 6 was also different from the other participants wearing dark-colored shirts. “There [is] no need for the police to match the outfits of everyone in the lineup any more than the police [are] required to match the physical proportions of the other men with scientific exactitude.” (People v. Floyd (1970) 1 Cal.3d 694, 713, overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) Additionally, it is clear from the video that defendant was wearing a dark blue sweatshirt as opposed to the light blue color in the lineup. (See People v. Santis (1992) 2 Cal.4th 1198, 1223 [“mere wearing of an item of apparel of the same color as that recalled by the witness—particularly a different item of apparel, for defendant does not dispute that the man who came to the door wore a jacket whereas the photograph showed defendant in a shirt—does not, without more, make the lineup unduly suggestive”].)
Further, defendant complains about the fact he has unique facial hair in the photographic lineup. Specifically, defendant claims that since he had the beanie pulled down during the robbery, the most prominent feature that the witnesses could see was his chin. However, the still photograph from the video shows the beanie was only pulled down just above his eyes. His nose and cheeks were also visible. Moreover, in photograph No. 2, the participant appears to have some facial hair on his chin. The participant in photograph No. 5 also has some hair toward his chin.
In People .v Johnson (1991) 3 Cal.4th 1183, the court noted that all of the photographs in that six-pack photographic lineup were of Black males and generally of the same complexion, age and build. It noted “Minor differences in facial hair among the participants did not make the lineup suggestive.” (Id. at p. 1217.) Here, all of the participants were Hispanic males with the same complexion and build. The minor difference in defendant’s facial hair was not impermissibly suggestive.
Moreover, under the totality of the circumstances, the identifications were reliable. Again, we look to the circumstances of the identification such as “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 or her 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.’” (Lucas, supra, 60 Cal.4th at p. 235.) Negrete was bent down putting money into the Dunbar box when defendant and Chivara entered the store. After she stood up, it was about 10 seconds until Chivara pulled out the gun. Orozco and Negrete were near defendant as he was just on the other side of the counter, about two to three feet from them.
Additionally, both Negrete and Orozco gave accurate descriptions of defendant. They both said defendant was heavyset and was wearing a beanie. Orozco stated defendant was a Hispanic male and in his forties. The surveillance video showed defendant wearing a beanie.
Moreover, only one week elapsed between the time of the robbery and the lineups. Negrete, when she viewed the six-pack photographic lineup, thought defendant was “definitely him” because it had just happened that week. It was based on her opportunity to view defendant during the robbery.
Finally, Negrete was asked in court after looking at the video and six-pack photographic lineup if she could recall what the man in the beanie looked like. She responded, “A little bit.” She was then asked, “If you were to look around the courtroom today, are you able to identify the heavier-set man with the beanie?” Negrete responded, “Because I seen the video right now and the pictures, yes.” She then identified defendant in court. Negrete indicated that before she saw the video in court she was not sure if defendant, who was in court, was the man in the beanie.
Here, still photographs from the surveillance video were shown to the witnesses and the jury. Those photographs show the bottom portion of defendant’s face. Negrete clearly identified defendant because of the surveillance video and seeing defendant in court, not because of the six-pack photographic lineup. The trial court properly denied defendant’s motion to exclude the pretrial identification and the in-court identification was not tainted by the prior identification.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


CODRINGTON
J.


SLOUGH
J.