Filed 1/23/18 P. v. Tillman

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ERNEST MARKEYA TILLMAN,

Defendant and Appellant.


E065706

(Super.Ct.No. RIF1402865)

OPINION


APPEAL from the Superior Court of Riverside County. Michele D. Levine and Richard Todd Fields, Judges. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ernest Markeya Tillman jumped into the back seat of a car belonging to the victim while she was parked in a parking lot. He held a BB gun to her head and forced her to drive to get him money. When she told him she did not have any money, he became angry and hit her in the head. Defendant jumped out of the vehicle. Fingerprints matched to defendant were found on the car and the victim identified defendant from a six-pack photographic lineup (lineup).
Defendant was convicted of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) and assault (§ 240). He also admitted in a bifurcated proceeding to having suffered a prior serious and violent offense (§§ 667, subds. (a), (c) & (e)(1), 1170.12, subd. (c)(1)) and having served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to an indeterminate term of 14 years to life plus a determinative term of 5 years to be served in state prison.
Defendant makes two claims as follows: (1) the impermissibly suggestive pretrial identification procedures and tainted in-court identification violated his Fifth and Fourteenth Amendment rights to due process requiring reversal of his convictions; and (2) the trial court erred by denying his Romero motion to strike his prior conviction.
FACTUAL AND PROCEDURAL HISTORY
A. KIDNAPPING AND ASSAULT
On July 30, 2014, the victim lived in a gated apartment complex located on Laselle Street in Moreno Valley. She had a four-door car at the time. On that night, around 9:00 p.m., the victim parked in the parking lot at her apartment complex; she stayed in her car to listen to music.
While sitting in her vehicle, she saw a man walk by her car and stare at her. About five minutes later, she heard the back door of her car open. She thought it was her girlfriend; she got out of her car thinking it was her girlfriend and that she may need help. She exited the car and a man, who she identified as defendant, was standing by the rear driver’s side door holding a gun. He told her to get back in the car.
She briefly got a “glimpse” of his face. She did not know him. She got back into the driver’s seat and defendant got in the back seat of the car directly behind her. Defendant pointed the gun to the back of her head and told her, “Let’s go.” She asked him where they were going. He responded, “You’re going to give me money.” She told him she did not have any money. He told her, “Well, you’re going to find me money, and if . . . this goes right, you won’t die tonight.” The victim did not know where to drive but pulled out of the apartment complex. She started driving toward a nearby shopping center.
The victim continued to tell him she had no money; he threatened her that she was going to die if she did not get him money. The victim was able to see defendant’s entire face in the rearview mirror. She could only see the front of his neck. He was wearing a grey hooded sweatshirt, which covered the rest of his neck, and long shorts. He was wearing a baseball hat. He had a ponytail that was “poofy” and “frizzy.” His eyes and hair were dark. She did not recall if he had any facial hair.
The victim drove toward the shopping center but defendant directed her to turn around. She made a U-turn and headed back toward the apartment complex. She begged him to let her just take him back to the apartment complex and let him out of the car. They drove around in circles while defendant tried to decide where to go. Defendant finally told her to drive back to where he got in the car and slow down enough so he could jump out of the car.
The victim slowed down near the apartment complex. Defendant opened the door and she took the opportunity to step on the gas to get away. Defendant was not out of the car because he had dropped his gun. He fell back into the car. He told her, “Oh, you fucked up, bitch.” Defendant struck her in the head with what felt like a blunt object but she did not see it.
Defendant jumped over the back seat into the victim’s lap. He then jumped out the driver’s side window into the street. He was in the middle of the street as she turned her car around. She drove right toward him and faced directly at him with her headlights shining on him. She was able to clearly see him. He ran into the apartment complex. She could hear defendant yelling “fucking bitch” as he ran away. She immediately called the police.
The victim told the 911 operator that defendant was a Black male in his early 20s. He had long hair. After she called 911, she looked at her face and was shocked to see the side of her face was swollen. The police arrived almost immediately. She described defendant to the responding officer as a light-skinned Black male, early 20s, with long curly/afro style hair in a ponytail. She said he was tall and thin.
She went to the hospital and was diagnosed with a concussion. She developed bruising on her face and blood pooled in the side of her eye. She had to get new glasses because hers were lost when defendant jumped out of the car. The victim was cold while she was in the waiting room at the hospital; she went to her car to retrieve a jacket. She found a BB gun in the back seat of her car under her jacket. She called the police.
The victim identified defendant in court as the man who got in to her car. Several days after the incident, the victim was shown the lineup. She identified defendant. She indicated it was the only recognizable “face” from the photographs she was shown. She stated that defendant’s hair was different but his face she recognized. She also recognized him from another photograph later obtained from Facebook; he had the same hair as the time of the incident in the photograph.
When officers dusted the victim’s car for prints one said that he hoped it would come back with a hit. When she viewed the lineup, she thought to herself that the police must have matched the fingerprints. She thought defendant hit her with the gun because he hit her so hard. She could not see defendant’s arms because he was wearing long sleeves.
B. INVESTIGATION AND IDENTIFICATION
Two fingerprints were found on the driver’s side outside door on the victim’s car. The prints were upside down with the top of the fingers facing the ground.
Riverside County Sheriff’s Detective Paul Questel was working patrol on July 30, 2014, at around 9:30 p.m. in Moreno Valley. He was dispatched to the victim’s apartment. He contacted the victim, who was frightened and shaking. She described her assailant as Black, early 20s, tall and thin, with “poofy” hair and a ponytail. The victim could only say that he was taller than she was; the victim’s height was five feet seven inches. She told him that defendant was a light-skinned Black male. Several hours later the victim contacted him and told him she found the BB gun in her car underneath her jacket. No prints were found on the gun. The victim stated her glasses were on the road somewhere but did not say when during the incident she lost them.
Detective Questel received notice that the fingerprints on the car matched defendant’s. Based on that information, he generated the lineup. In order to generate the lineup, he used a database of photographs. He showed the victim the lineup on August 6, 2014. He read her the standard admonition. She identified defendant. The photograph of defendant that was used was taken in 2007 or 2009.
Scott Michaels, Supervising Investigator at the Riverside County District Attorney’s Officer Bureau of Investigation was advised by the victim that she got several “very good” looks at defendant. She got a good look at him when he jumped into her lap and out the window. She also got a good look when she saw him in the headlights. She never mentioned not having her glasses on. Investigator Michaels was able to obtain photographs of defendant from his Facebook page, which were taken on March 31, 2014. Defendant had longer hair. The victim identified the person as defendant.
Defendant was evasive in giving his correct name to the deputy who arrested him. Defendant’s height was about five feet seven inches. Defendant had tattoos on his legs.
C. DEFENSE
Two state employees who had interacted with defendant between March 2014 and August 2014, did not recall that he had long hair. However, he wore it in a braided style. He had tattoos on his neck.
Dr. Mitchell Eisen was a psychologist who specialized in eyewitness identification. Dr. Eisen indicated in experiments for eyewitness identification, when the person was told that the police thought they had the right person, it increased the chance of an identification. Memories were not like a camera; memories of an event can change over time. Traumatic stress that threatens a person’s safety or life causes the person to focus on one factor, such as escaping or never seeing his or her family again. This interfered with the ability to focus on the memory of the event. When a gun is involved, the victim tends to focus on the weapon. It would be difficult to form a long-term memory of an event that involved a gun and driving. The divided attention would cause less ability to remember the details. Intensive stress has a detrimental effect on memory.
A person tends to remember major defining features of another person. Tattoos, piercings, unique haircuts and facial hair are most commonly remembered. Reports by a witness immediately following a crime are more accurate than later reports. Dr. Eisen did indicate that traumatic stress affected each person differently and may not impact memory.
Dr. Eisen explained admonishments were developed because witnesses tended to believe that the suspect was in the six-pack photographic lineup. It was possible even with the admonishment that the person would not understand the admonishment, or if it was read quickly, not be remembered. If the witness was convinced that the police believed they had the right person, the admonition had less effect. Dr. Eisen explained that experimenter bias is the conscious or unconscious influence that the experimenter can have on the subject because he or she knows the placement of the suspect. Dr. Eisen explained that a police officer showing a six-pack photographic lineup was an experimenter. The longer it took for identification, the more the experimenter could influence the identification. Such as if the person was undecided between two photographs and the experimenter pointed out one photograph. A six-pack photographic lineup was suggestive if one choice stuck out as the better choice than the others independent of memory of the witness. The identification in the six-pack would influence the in-court identification. Dr. Eisen could not say how the traumatic stress affected the victim.
DISCUSSION
A. IDENTIFICATION
Defendant asserts that the impermissibly suggestive pretrial identification procedures and tainted in-court identification of him violated his state and federal Constitutional rights to due process.
“[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.)
Defendant made no objection to the admission of the lineup or the in-court identification. It is well-settled that, “ ‘ “questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought . . . on appeal.” ’ ” (People v. Williams (2008) 43 Cal.4th 584, 620; see also Evid. Code, § 353.) A defendant who fails to make a timely objection to in-court identification or a motion to exclude pretrial identification procedures below forfeits the issue on appeal. (People v. Elliott (2012) 53 Cal.4th 535, 585-586; Evid. Code, § 353.)
Although defendant sought instruction on the suggestiveness of the six-pack photographic lineup, he did not object to the admission of the lineup at trial or to the victim’s in-court identification. Since defendant failed to object to the admission of the identifications in the trial court, he has forfeited the issue on appeal.
Anticipating that this court would find that he waived the claim, defendant insists that he received ineffective assistance of counsel due to his counsel’s failure to object to the identifications. “ ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189.)
Even if defendant’s counsel had objected, the trial court reasonably could admit the lineup and the victim’s in-court identification. “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 (Cunningham); 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.)
Defendant argues the lineup was too suggestive because it failed to show that defendant had a neck tattoo, a feature that defendant possessed but that the victim had failed to mention in her description. Moreover, because it was only a head shot, it did not show that he was short and stocky, as opposed to tall and thin as described by the victim. Finally, defendant was the only light-skinned Black male in the photographs.
While it is true that defendant’s photograph in the lineup is the lightest photograph, it was not unduly suggestive as argued by defendant. “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) All of the photographs in the lineup are of Black males in their 20s. All have some form of facial hair, including defendant, even though the victim did not mention facial hair. Although defendant complains that his photograph did not show his neck tattoo, the victim indicated that she did not see defendant’s neck because he had it covered with his hooded sweatshirt.
Moreover, defendant’s complaint that the lineup did not show his entire body lacks merit as nearly all six-pack photographic lineups are only head shots. Regardless, none of the head shots revealed the height or weight of the suspects. Finally, even defense counsel in his closing argument stated that there were two photographs of light-skinned Black males in the photo array: positions #3 and #6 (defendant). In fact, the person in position #3 met the description the victim gave that the suspect had “poofy” hair and light skin; defendant’s photograph shows him with short hair. The lineup was not unduly suggestive.
Additionally, under the totality of the circumstances, the victim’s 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.) “[T]here must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the circumstances’ ” ’ to warrant reversal of a conviction on this ground.” (Cunningham, supra, 25 Cal.4th at p. 990.)
There is no substantial likelihood of misidentification in this case. The victim first saw defendant when she came face-to-face with him outside the car before he demanded she get back in the car. Although he had a gun, she determined during the incident that it was not real. The victim was able to view defendant—who had on a hooded sweatshirt but nothing covering his face—in the rearview mirror. She again saw defendant as he jumped to go out the driver’s side window. Finally, she was able to see him in the headlights of her car after he exited the car. Although the victim testified that she had lost her glasses when defendant jumped out of the car, defense counsel never questioned her as to the extent she needed the glasses. She testified she “clearly” saw defendant.
Defendant complains that the police advised the victim, while they were dusting her car for fingerprints, that they hoped to find a match. At trial, the victim stated that when she viewed the lineup, she thought it was a possibility that they had found a match. However, the victim was read the standard admonition prior to viewing the lineup that the suspect may not be in the six-pack lineup and that she need not identify anyone from the lineup. There is no evidence she ignored the admonition.
Defendant also complains the victim’s description of the suspect did not match his features. Initially, she never mentioned the tattoo he had on his neck. However, the victim testified she could not see the side of his neck due to the sweatshirt. Moreover, she described him as “tall and thin.” However, she only described him as being taller than her and did not provide a description of his actual height. The photograph of defendant’s entire body from around the time of the crime certainly does not show he was overweight. There is no substantial likelihood of irreparable misidentification under the totality of the circumstances. (Cunningham, supra, 25 Cal.4th at p. 990.)
Finally, there is no substantial likelihood of misidentification based on the corroborating evidence that defendant’s fingerprints were found on the driver’s side door of the victim’s car. Defendant did not know the victim and there was no evidence he lived near her. The fingerprints were positioned in the spot consistent with her testimony that he jumped out of the driver’s side window. As such, defendant cannot show he was prejudiced. (People v. Carter, supra, 36 Cal.4th at p. 1189.)
B. ROMERO MOTION
Defendant insists that the trial court should have struck his prior felony conviction under Romero because he suffered from a mental illness and because even if the trial court struck the prior, he would receive a lengthy sentence. The trial court did not abuse its discretion.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to sentencing, defendant filed a written motion to strike his prior conviction in the interests of justice. Defendant contended he had suffered from mental illness his entire life. He had been taking anti-psychotic mediations since he was incarcerated. Defendant admitted his struggles with the law began in 2007. If the trial court were to strike his prior conviction, he would still receive a lengthy prison sentence.
According to the probation report, defendant had been diagnosed with schizophrenia and bipolar disorder. He had been prescribed medication. Defendant had a criminal history dating back to 2001, which involved theft of a vehicle. In 2007, in the months of June, July, August and September, he had been arrested for burglary offenses and each time was sentenced to probation. He committed the priors in this case, an attempted carjacking and vehicle theft, in July 2009. He had nine different aliases. He had three different social security numbers.
Defendant was interviewed regarding his social and criminal history. Defendant claimed to have been molested when he was seven or eight years old by a woman who was babysitting him. When he was 11 years old, his uncle started physically abusing him to make him tougher. Defendant had been close with his grandmother, who had passed away the prior month. He reported hearing voices and seeing spirits of people who had passed away. He had recently started seeing his grandmother’s spirit. She told him to hurt people. He asked to be put in a safety cell at jail so he would not hurt people. He sometimes stopped taking medication because he wanted to talk to the spirits. He would take his medication when he thought he might hurt someone.
Defendant had never held a job because during interviews he would be distracted by hallucinations. He had never used controlled substances. Defendant committed burglaries in his past because he was homeless; he broke in to use the facilities. He stole items to pay for food. He pleaded guilty to the prior attempted carjacking because he did not want the repercussions of snitching on a codefendant.
Defendant’s parole officer reported that defendant had “exceptionally poor performance while on parole.” He did not participate in any court-ordered programs. He frequently left the county where he was being supervised.
In denying the motion, the trial court stated it was aware of its requirement to look at several different factors under Romero. The trial court recognized that defendant suffered from some kind of mental illness and that he had trauma in his upbringing. The trial court was concerned, as to the mental illness, that it had been ongoing for some time. Defendant had shown that he voluntarily stopped taking his medication and would hear voices. This would cause his violent behavior. This was not a mitigating factor based on the violence that he inflicted on others. The trial court felt that defendant needed mental health counseling in prison, but that did not result in him being outside the spirit of the “Three Strikes” law.
2. ANALYSIS
An exercise of discretion to strike a prior conviction pursuant to section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) “[A] ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ (Id. at p. 377.) The circumstances must be “ ‘extraordinary’ ” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Id. at p. 378.)
Here, the trial court was aware of its discretion to strike defendant’s prior conviction and it thoroughly reviewed defendant’s prospects and background. The trial court properly determined that defendant’s mental illness and the length of the sentence should it strike the prior conviction did not take defendant outside the spirit of the Three Strikes law. Defendant had a long history of criminal activity. In addition, he admitted he voluntarily stopped taking his medication for his mental illness at times. He would hear voices and become violent when he stopped taking his medication. He had shown that he engaged in violent criminal acts when not taking his medication and was a danger to society.
Additionally, the instant crime involved great violence as defendant severely injured the victim and threatened to kill her. Defendant performed poorly on parole. He committed the instant offense while on parole; he had only been on parole three months when he committed the instant crime. Based on the foregoing, the record shows that the trial court carefully considered whether to strike the prior conviction and properly determined this was not the sort of “extraordinary” circumstances that warranted striking defendant’s prior conviction.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


RAMIREZ
P. J.


HOLMES
J.