P. v. Lozada

Filed 9/21/07 P. v. Lozada CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Mark Anthony Lozada was placed on felony probation after he was tried before a jury and convicted of assault by means of force likely to cause great bodily injury. (Pen. Code,  245, subd. (a)(1).)[1]He contends the judgment must be reversed because (1) the testimony of the victim and the only other eyewitness was tainted by an unduly suggestive pretrial identification procedure; (2) the court committed prejudicial error when it gave a flight instruction over his objection and declined to give an absence of flight instruction at his request; and (3) his motion for a new trial on the grounds of suggestive identification procedures and insufficient evidence should have been granted. We affirm.

FACTS

Prosecution Evidence

On September 23, 2003, Rommel Cabillan was driving home from San Francisco at about 3:00 a.m. He was supposed to meet his friend Allen. He received a call on his cell phone that he assumed was from Allen, but the person on the other end said that Allen couldnt talk and asked whether Cabillan had any drugs. Believing Allen was in trouble, Cabillan said that he had drugs (even though he did not) and arranged to meet the caller at a Shell station in Vallejo.

When Cabillan arrived at the station, he saw a green van that he thought he recognized as one belonging to his long-time friend, Christine Smith. There were two men inside the van: appellant, who was sitting in the passenger seat, and a man in the drivers seat who looked like he could be appellants brother. Smith was dating appellants brother, but Cabillan had never met appellant before that night.

The man who was driving the van got into Cabillans car and began asking him about the drugs. Appellant, who was wearing a beanie cap, got out of the van and walked toward Cabillans drivers side door. Cabillan thought appellant was going to get a squeegee to clean the windshield, but all of a sudden he opened the door of Cabillans car and hit him hard on the left side of the face. Cabillan heard a loud bang, which he mistakenly believed was a gun going off, and lost consciousness as a result of the blow.

David Mapanoo was an acquaintance of Cabillans who happened to be at the Shell station that night. He saw a green van in the parking lot that was driven by appellant, whom he had not seen before and who mean-mugged him. Mapanoo bought some cigarettes from the stations market, and as he was walking back to his car he noticed that appellant was standing near the drivers side door of Cabillans car while Cabillan spoke to another man in his passenger seat. Mapanoo heard a smacking sound and turned to see appellant and the other man beating Cabillan with their firsts.

Mapanoo ran over and tried to push appellant away from Cabillan. Mapanoo was hit from behind with a hard object and lost consciousness. When he awakened, Cabillan and his car were still there, but the van was gone and appellant and his companion were nowhere to be seen. Disoriented and bleeding from his head, Mapanoo left the station and drove to the house where his girlfriend was staying. She drove him to the hospital, where seven staples were placed in his head. Meanwhile, Cabillan regained consciousness and drove to the home of a friend, who took Cabillan to the hospital. Cabillan was airlifted to another hospital for surgery.

Vallejo Police Department officers responded to a 911 hang-up call from the Shell station, but they arrived after everyone involved in the incident had left. After hearing reports that two men with head injuries had been admitted to the hospital, an officer interviewed Mapanoo, who told them that he had seen Cabillan talking to two Asian or Filipino men. He described one of them as 25-30 years old, five feet eleven inches tall, with a thin build, wearing a black jacket and black beanie cap. The other man was described as 25 to 30 years old, Asian or Filipino, five foot eleven inches to six feet tall. When the officers contacted Cabillan, his jaw was wired shut and he did not want to talk. He told the officers that he did not know who had attacked him, and he did not provide a description of his assailants.

Arnell de los Reyes was a neighbor and close friend of Cabillans. In January 2004, about four months after the attack, Reyes showed Cabillan a torn photograph of appellant showing him from the torso up in a sitting position. Reyes asked Cabillan whether appellant was the person who had assaulted him.[2]Cabillan immediately recognized appellant as his assailant.

Cabillan took the photograph and showed it to Mapanoo.[3]Cabillan then provided the photograph and appellants name to Detective Iacono, who was investigating the case. Iacono compiled a six-pack photographic lineup that contained appellants photograph and showed it to Cabillan after advising him that the person who assaulted him might not be included in the array of pictures, that Cabillan was under no obligation to make an identification, and that the purpose of the lineup was to exonerate the innocent as well as to find out who committed the crime. The photograph of appellant that was used in the line-up was a head shot obtained from other sources, not the torn photograph that had been provided to the police by Cabillan. Cabillan immediately identified appellants photograph as his assailant, but he could not identify anyone in another six-pack that contained a photograph of appellants brother. Mapanoo also identified appellants picture from the photographic lineup after a similar admonition, although it took him 30-40 seconds to do so.

Defense Evidence

The defense theory at trial was mistaken identification. Appellant lived with his parents, his girlfriend Analy Villa-Seor, and their two children. Appellant and Villa-Seor maintained that appellant had been home with his family on the night Cabillan was attacked. Appellants father testified that Christine Smith was the girlfriend of appellants brother Harold, but that she did not have a green van as Cabillan believed. Appellants father owned a green van that no one else was allowed to drive.

Appellants cousin, Gary Juan, had attended appellants preliminary hearing, where he saw Cabillan sit down next to appellant in the audience, apparently without recognizing him. He testified that he later heard Cabillan tell a woman in the hallway that appellant was not inside the courtroom.[4]

Dr. Martin Blinder, a psychiatrist and expert in eyewitness identification, explained that a long-term memory is created through a three-step process of perception, storage and retrieval, and that errors at any one of these stages can result in faulty memories. Anxiety will impair a persons ability to accurately perceive a situation, and a blow to the head can produce retrograde amnesia, which causes a loss of memory of events occurring for some period immediately before the blow. Dr. Blinder explained that it was suggestive to show a witness a single person photograph several months after the incident, and it was likely the witness would remember the person in the photograph as the assailant. A witnesss memory could be contaminated by discussing an event with another witness before attempting to identify a photograph.

Appellant was five feet five and one-half inches tall, several inches shorter than the estimate of the assailants heights that Mapanoo gave to police.

DISCUSSION

Pretrial Identification Procedures

Cabillan initially identified appellant from a single torn photograph procured by his friend, Arnell de los Reyes, which he then showed to Mapanoo. Cabillan and Mapanoo later selected a different photograph of appellant from a six-pack lineup prepared by the police. The defense filed a pretrial motion to exclude this identification evidence as the product of unduly suggestive procedures. The court conducted a lengthy hearing under Evidence Code section 402, after which it denied the motion. Cabillan and Mapanoo were then allowed, over defense objection, to identify appellant as Cabillans assailant when they testified at trial. Appellant contends the trial court abused its discretion when it denied the motion to exclude and permitted the identification testimony at trial. We reject the claim.

A defendant bears the burden of demonstrating that eyewitness identification evidence should be excluded as unreliable. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) A courts ruling regarding the suggestiveness of a pretrial identification procedure is subject to our independent review, with deference given to the factual findings of the trial court. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)

Due process requires the exclusion of identification testimony only if the procedures used were unnecessarily suggestive and, if so, the resulting identification was unreliable. (Manson v. Brathwaite (1977) 432 U.S. 98, 106-114 (Manson); Neil v. Biggers (1972) 409 U.S. 188, 196-199 (Neil); People v. Yeoman (2003) 31 Cal.4th 93, 125 (Yeoman).) When the defendant has been identified by an eyewitness at trial, an appellate court will set aside a conviction based on a suggestive pretrial photographic identification only if the pretrial procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384 (Simmons).)

We agree with the Peoples contention that due process was not implicated when Reyes showed the single photograph to Cabillan, who in turn showed it to Mapanoo. Neither the police nor the prosecution were involved in procuring the photograph or showing it to the witnesses. For an identification procedure to violate due process, the state must, at the threshold, improperly suggest something to the witnessi.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. (Ochoa, supra, 19 Cal.4th at p. 413.) The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. (Colorado v. Connelly (1986) 479 U.S. 157, 166 [rejecting argument that confession should be suppressed where police had taken no affirmative steps to secure it]; see also United States v. Peele (9th Cir. 1978) 574 F.2d 489, 491 [no due process violation where government not involved in identification procedures].)

In Yeoman, supra, 31 Cal.4th at page 93, the defendant argued that a witnesss attendance at his preliminary hearing had tainted her later in-court identification. The court disagreed, noting that the witness had not been called to testify at the preliminary hearing and had attended of her own volition rather than at the Peoples request. The court concluded that the unilateral decision to attend [did] not implicate the rule of Manson v. Brathwaite, supra, 432 U.S. 98, and Neil v. Biggers, supra, 409 U.S. 188, which speaks only to suggestive identification procedures employed by the People. (Yeoman, supra, at p. 125.) Similarly, Reyess unilateral decision to show the photograph to Cabillan, and Cabillans unilateral decision to show it to Mapanoo, does not require suppression of the evidence on the grounds of undue suggestiveness.

Appellant argues that the police employed suggestive pretrial identification procedures when, after learning that Cabillan had identified appellant as his assailant based on a photograph, they prepared a six-pack lineup that included appellants photograph. According to appellant, the six-pack reinforced the unduly suggestive presentation of the single torn photograph and tainted the in court identifications made by both witnesses at trial.

In Ochoa, supra, 19 Cal.4th 353, a police officer showed an eyewitness a photographic lineup whose propriety was unchallenged, and at the witnesss request, showed her a photograph of the defendants side profile so she could be sure he was the right person. (Id. at pp. 411-412.) The court rejected the defendants claim that showing the profile was unnecessarily suggestive: Due process does not forbid the state to provide useful further information in response to a witnesss request, for the state is not suggesting anything. (Id. at p. 413.) Though there is no evidence the police prepared the six-packs at the specific request of Cabillan or Mapanoo, the use of the line-ups was akin to the presentation of a follow-up photograph at the witnesss request. Cabillan had already positively identified the photograph of appellant as the assailant who hit him first. According to Cabillans testimony at the Evidence Code section 402 hearing, Mapanoo had identified this photograph as well. Showing Cabillan and Mapanoo a line-up with a different picture of appellant did not suggest[] in advance of identification by the witness[es] the identity of the person suspected by the police, (Ochoa, supra, at p. 413) but instead tested the certainty of identifications that had already been made.[5]Had the police not conducted a six-pack line-up, the defense could have easily been heard to complain that the prosecution was suggesting the suspects identity by simply accepting the photographic identification, arresting the subject, and bringing him to trial where it would be easier to make an in-court identification.

Even if we assume the six-pack lineups conducted by police were unduly and unnecessarily suggestive, suppression was not required if the identifications were nevertheless reliable under the totality of the circumstances. (Ochoa, supra, 19 Cal.4th at p. 412.) Factors relevant to determining reliability include the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of the witnesss prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (Id. at p. 412.)

These factors are mixed in this case. Though Cabillan and Mapanoo were under a great deal of stress and suffered head injuries as a result of the altercation, both had a chance to observe appellant at the gas station before any violence began. Mapanoos general description of the suspects race, gender and age were consistent with appellants characteristics, although his description of height and build apparently were not. Four months had passed between the crime and the initial photographic identification, but Cabillan and Mapanoo were both very certain at trial that appellant was the person involved. Cabillan and Mapanoo both identified appellant, making the evidence much stronger than it would have been if only one of them had been able to do so. Cabillans initial failure to cooperate with police by providing a description of the suspects can be readily attributed to his admitted involvement with drugs, even though he denied possessing any drugs on the night he was assaulted.

Certainly, some of the evidence was damaging to the credibility of the eyewitnesses. But the circumstances did not give rise to a very substantial likelihood of irreparable misidentification. (Simmons, supra, 390 U.S. at p. 384.) Short of that point, such evidence is for the jury to weigh. . . . [E]vidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. (Manson, supra, 432 U.S. at p. 116.) The trial court did not err when it admitted the identification evidence.

Flight and Absence of Flight Instructions

Over defense counsels objection, the court gave CALJIC No. 2.52, the standard flight instruction: The flight of a person immediately after the commission of a crime, or after he/she is accused of a crime, is not sufficient in itself to establish his/her guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide. Appellant contends the instruction should not have been given because there was no evidence of flight within the meaning of the instruction. He also contends the court should have granted his request for a corollary instruction to the effect that the absence of flight after a crime is a circumstance tending to show innocence. We disagree.

A flight instruction is appropriate if there is substantial evidence that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982; see  1127c.) When, as here, the defendants identity as the perpetrator is at issue, a flight instruction may be given [i]f there is evidence identifying the person who fled as the defendant. (People v. Mason (1991) 52 Cal.3d 909, 943 (Mason); accord, People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; People v. Pensinger (1991) 52 Cal.3d 1210, 1245 (Pensinger).) In such cases, the jury [is] to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step. (Mason, supra, 52 Cal.3d at p. 943.)

In this case, Cabillan and Mapanoo identified appellant as one of the men in the van at the Shell station. Cabillan recognized the van as one belonging to Christine Smith, who had ties to appellant because she was dating his brother. Both Cabillan and Mapanoo testified that appellant struck Cabillan, that they were knocked unconscious during the altercation, and that appellant and the other man were gone when they came to. Though evidence that an accused left the scene and went home is not evidence of flight that necessarily supports an inference of consciousness of guilt (Pensinger, supra, 52 Cal.3d at p. 1244), appellants abrupt departure immediately following the altercation suggests an intent to evade detection from which the jury could reasonably infer a guilty state of mind. (See People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

Even if we were to assume that appellants departure from the scene did not evince a consciousness of guilt, CALJIC No. 2.52 was not prejudicial. The instruction does not assume either guilt or flight and is actually helpful to the defense by admonishing circumspection regarding evidence that might otherwise be considered decisively inculpatory. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.) CALJIC No. 17.31 specifically advised the jury, Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist.

Moreover, the jury would not have utilized CALJIC No. 2.52 at all if it did not first determine that appellant was the person in the green van who assaulted Cabillan. Cabillans injuries overwhelmingly established that an assault took place. Once the jury accepted the eyewitness identification evidence placing appellant at the scene, there was no basis for it to conclude he did not participate in the assault, and there was no evidence suggesting any defense that would mitigate his culpability. The characterization of appellants departure from the scene as flight was virtually superfluous under these circumstances, because the factual findings necessary to establish flight also established guilt of the charged offense. It is not reasonably probable appellant would have obtained a more favorable result if CALJIC No. 2.52 had been omitted. (People v. Silva (1988) 45 Cal.3d 604, 628.)

Nor was the trial court obligated to grant appellants request for an absence of flight instruction based on the evidence that he did not move away or take affirmative steps to avoid police detection in the months between the assault in September 2003 and his arrest in February 2004. Due process does not require that such an instruction be given as a matter of reciprocity whenever the court instructs on flight. (People v. Staten (2000) 24 Cal.4th 434; People v. Williams (1997) 55 Cal.App.4th 648, 652-653 (Williams).) There are a number of plausible reasons why a guilty person would not flee from the authorities, making the absence of flight so laden with conflicting interpretations, that its probative value on the issue of innocence is slight. (Williams, supra, at p. 652.) Here, the jury could have drawn no rational inferences regarding guilt or innocence from appellants failure to leave his family and move away during the months following the attack on Cabillan, and the court did not err when it refused appellants proposed instruction.

Denial of Motion for New Trial

After the jury returned its verdict, appellant filed motions seeking a new trial on the grounds that (1) the trial court had committed an error of law in admitting evidence of eyewitness identifications that were tainted by suggestive procedures, and (2) the verdict was not supported by substantial evidence. ( 1181, subds. (5) & (6).) We disagree that the trial court erred in denying these motions.

When reviewing the denial of a motion for new trial based on an error of law, we apply the deferential abuse of discretion standard. (People v. Ault (2004) 33 Cal.4th 1250, 1255.) As previously discussed, the court did not err at trial when it admitted evidence of the eyewitness identifications. It did not, therefore, abuse its discretion when it declined to order a new trial on the same ground. (See People v. Coffmanand Marlow (2004) 34 Cal.4th 1, 127.)

As for the claim that the evidence was insufficient, a trial court evaluating such an argument in a motion for new trial is required to independently review the evidence to satisfy itself that it was sufficient to sustain the verdict. (See People v. Robarge (1953) 41 Cal.2d 628, 633 (Robarge).) The trial court is not bound by the jurys determination as to the credibility of witnesses or the weight of the evidence, but it should be guided by a presumption in favor of the verdict. (People v. Guerra (2006) 37 Cal.4th 1067, 1159 (Guerra).) On appeal, we review the ruling for abuse of discretion. (Id. at pp. 1159‑1160.)

There was no abuse in this case. The court indicated on the record that it had carefully weighed the evidence and had considered the demeanor of the witnesses, as well as the inconsistencies in their testimony. It acknowledged that the defense had raised legitimate questions about the ability of Cabillan and Mapanoo to identify appellant as the perpetrator, and it stated that the evidence had not been easy to weigh. But it concluded that sufficient credible evidence supported the jurys verdict. The court clearly gave appellant the benefit of its independent determination as to the probative value of the evidence. (People v. Dickens (2005) 130 Cal.App.4th 1245, 1252; see also Robarge, supra, 41 Cal.2d at pp. 633-634.)

Appellant argues that the evidence was insufficient as a matter of law because the eyewitness identifications by Cabillan and Mapanoo were simply unbelievable. It is not our function to reweigh the jurys determination of the evidence on appeal or substitute our own discretion for that of the trial court when it ruled on the motion for new trial. Rather, our review is limited to whether the trial court manifestly and unmistakably abused its discretion when it denied the motion. (Guerra, supra, 37 Cal.4th at p. 1160.) As the trial court recognized, the defense had raised a number of important questions about the reliability of the identifications. But it did not succeed in showing that it would have been impossible or even improbable for Cabillan and Mapanoo to see and remember the man who hit Cabillan. We cannot say the trial court abused its discretion when it credited the eyewitness testimony and allowed the verdict to stand.

DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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[1]Further statutory references are to the Penal Code unless otherwise indicated.

[2] Reyes did not testify at trial, but at a pretrial hearing on the admissibility of the identification evidence under Evidence Code section 402, he acknowledges that he had stolen the photograph from appellants girlfriends mother. Reyes claimed at that hearing to be romantically involved with appellants girlfriend, which she denied. Reyes explained at the Evidence Code section 402 hearing that he thought appellant might be involved in the assaults because Cabillan had recognized Christine Smiths van and Smith was dating appellants brother.

[3] Cabillan testified at trial that he showed the photograph to Mapanoo, but Mapanoo testified that he had not seen it. At the hearing that was held under Evidence Code section 402, Cabillan had testified that Mapanoo agreed that the man in the photograph was the assailant, but this testimony was excluded as hearsay at trial.

[4] Cabillan denied making any statement about appellants not being in the courtroom. He testified at trial that he had recognized defendant when he sat down next to him, but noticed that he had gained weight. Appellant acknowledged during his trial testimony that he gained about 20 pounds since the date of the charged offense.

[5] If, as Mapanoo testified, he did not see the single photograph before viewing the six-pack, there would be no basis for claiming the lineup was suggestive as to him. Appellant does not challenge the composition of the six-pack itself.