P. v. Parra

Filed 10/11/06 P. v. Parra CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed.

A jury convicted Victor Parra of one count of battery by a prisoner upon a non-confined person, in violation of Penal Code section 4501.5.^[1] The court sentenced him to the upper term of four years in prison.

Parra appeals, contending that his conviction must be reversed because the trial court: (i) abused its discretion in denying his request for a continuance after a prosecution witness revealed that he had looked through a series of photographs prior to identifying Parra; and (ii) erred in instructing the jury pursuant to CALJIC No. 2.92 that it should consider an eyewitness's certainty in determining the weight to give eyewitness identification testimony. Parra also argues that the trial court violated his federal constitutional rights as established in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) by sentencing him to an upper-term sentence under California's determinate sentencing law. We find Parra's claims to be without merit and affirm the judgment.

FACTS

On the morning of November 21, 2003, in the aftermath of a fight between prisoners, a number of prisoners at the Calipatria State Prison, including Parra, attacked the prison guards in a portion of the prison yard.

Parra's role in the assaults consisted of attacking Correctional Officer Anthony Biondo and repeatedly striking him in the chest with his fists. Biondo, who was also pepper-sprayed by another inmate, eventually grabbed hold of Parra and wrestled him to the ground. With the assistance of Correctional Officers Malvern Senkel and Robert Lomer III, Biondo was able to subdue Parra, and Lomer placed him in handcuffs. Biondo, who was wearing a puncture-proof vest, was not seriously injured.

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion in Denying Parra's Request for a

Midtrial Continuance

Parra contends that the trial court abused its discretion in denying his request for a continuance after Officer Lomer revealed during cross-examination that he had reviewed a set of photographs prior to identifying Parra as Officer Biondo's assailant. We evaluate this contention after setting forth the pertinent facts.

A. Facts Regarding Continuance Request

On direct examination, Officer Lomer identified Parra as the inmate he had observed struggling with Officer Biondo and whom Lomer then handcuffed. Lomer also testified that he did not recognize Parra at the time he handcuffed him.

On cross-examination, Lomer testified he had previously prepared a report that identified Parra as Biondo's assailant. When asked how he had known Parra's name for inclusion in that report, Lomer stated he had gotten the name "[b]y looking at a lineup of photo I.D.'s that were available after[]" the altercation. Lomer explained that the photographs were "[n]ot necessarily a lineup," but included "all the inmates that they believed to be involved" in the incidents that day. Lomer stated, "I flipped through all the pictures. And once I saw [Parra's] picture, I recognized him from the incident."

On redirect examination, Lomer stated that his in-court identification of Parra was based in part on his review of the photographs, and in part on his independent "recollection and interaction with [Parra], handcuffing him." Lomer emphasized, "I know without a doubt" that it was Parra because "[i]n the line of work that I'm in, once you actually get into an altercation with somebody you tend to remember exactly what they look like . . . ."

After Officer Lomer's testimony, the prosecution rested its case. Parra then moved to dismiss the case on the grounds that the prosecution's failure to produce the "photo lineup" that Lomer referenced in his testimony violated its pretrial discovery obligations.^[2] The prosecutor objected to the request for dismissal and stated that he, "along with [defense counsel,] [was] just hearing for the first time" about the photographs. The prosecutor stated there was "an almost six-hundred-page report" regarding the prison assaults, and "[t]here's nothing in these six hundred pages that indicates there was some sort of I.D. showing." The prosecutor also stated that in response to the defense counsel's earlier request for discovery and noticed motion seeking additional discovery, he had requested that the prison provide him with all additional information regarding the case and had been informed that there was nothing else to produce.

The court ruled that dismissal was not warranted because there was no evidence of bad faith in the untimely disclosure, and there was "insufficient information before the court to characterize" the photograph array reviewed by Officer Lomer as a "lineup." Defense counsel then requested a continuance to allow more time for the defense to obtain and review the photographs shown to Officer Lomer. Defense counsel stated he would use the information gleaned from this review when he "recall[ed] Officer Lomer and Officer Senkel." The court denied the continuance motion without further comment.

After a recess, the defense presented its case. The defense called Officer Lomer, and again asked him about the photographs he had reviewed. Lomer described the photographs as a "stack of inmate identification cards that were rubber-banded together." Lomer also testified that there were photographs of inmates included in the stack that he did not identify as being involved in any assaults. He could not recall who gave him the photographs. Defense counsel also called Officer Senkel to testify in the defense case, but did not ask him any questions about whether he had reviewed photographs prior to identifying Parra.

B. Parra Has Failed to Establish That the Trial Court Abused Its Discretion in Denying His Request for a Continuance

Parra contends that the trial court abused its discretion in denying his motion for a continuance.^[3] Parra argues that a continuance would have permitted him to "secure a copy of [the] photographic lineup" and then "to attack the validity of th[at] line-up and argue that his identification was unreliable."

We review a trial court's denial of a motion for a continuance for an abuse of discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352; see also People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala) [trial court's ruling "on matters regarding discovery," including appropriate response to a discovery violation reviewed "under an abuse of discretion standard"].) " 'The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " (People v. Zapien (1993) 4 Cal.4th 929, 972 (Zapien), quoting People v. Laursen (1972) 8 Cal.3d 192, 204; see also People v. Ainsworth (1988) 45 Cal.3d 984, 1030.) The appellant bears the " '[t]he burden [of] establish[ing] an abuse of judicial discretion . . . .' " (People v. Beeler (1995) 9 Cal.4th 953, 1003 (Beeler); People v. Seaton (2001) 26 Cal.4th 598, 660 ["The trial court has substantial discretion in ruling on midtrial motions to continue the case, and appellate challenges to a trial court's denial of such a motion are rarely successful"].) In addition, by statute, a trial court may only grant a continuance "upon a showing of good cause." (§ 1050, subd. (e); § 1050, subd. (a) [codification of legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"].)

In the instant case, even assuming that the prosecution violated its discovery obligations by failing to timely disclose the photographs and Officer Lomer's reliance on them, the trial court did not abuse its discretion in denying the request for a continuance.^[4] The court reasonably could have determined that because " 'the benefit which [Parra] anticipate[d]' " from the granting of the continuance was minimal and unlikely to result, " 'substantial justice' " would not be served by delaying the trial. (Zapien, supra, 4 Cal.4th at p. 972; Beeler, supra, 9 Cal.4th at p. 1003 ["An important factor for a trial court to consider is whether a continuance would be useful"]; Ayala, supra, 23 Cal.4th at p. 299 [recognizing trial court's broad discretion to choose between " ' "a wide range of sanctions," ' " including no sanction in response to prosecution's discovery violation]; People v. Zamora (1980) 28 Cal.3d 88, 100 [sanction not required in response to discovery violation where no bad faith is shown].)

The record before the trial court suggested that the benefit Parra sought from a continuance -- an opportunity to demonstrate that the photographs reviewed by Officer Lomer were improperly suggestive -- was highly speculative. Lomer testified that he reviewed "approximately 20 to 30" "inmate identification cards" that were "rubber-banded together." This description suggests that there was nothing about Parra's photograph (other than that it was included in the array) or the procedure employed that would have singled out Parra for selection by Officer Lomer.^[5] Given this testimony, the trial court could reasonably have discounted the benefit of a continuance to obtain the photographs themselves. (Beeler, supra, 9 Cal.4th at p. 1003 [defense counsel's speculative declaration that continuance would lead to discovery of relevant evidence insufficient to establish abuse of discretion].) Further, because Officer Lomer testified that his in-court identification was also based on an independent source -- his "recollection and . . . interaction with [Parra], handcuffing him" -- and that he knew "without a doubt" that it was Parra because "[i]n the line of work that I'm in, once you actually get into an altercation with somebody you tend to remember exactly what they look like," Lomer's in-court identification of Parra would likely have been admissible regardless of whether the photograph array was improperly suggestive. (People v. Ratliff (1986) 41 Cal.3d 675, 688 & fn. 2 [in-court identification was properly allowed despite improper pretrial lineup because implicit finding that in-court identification of the defendant had an origin independent of the lineup "was amply supported by [witness's] testimony that he viewed defendant during the offense, that his identification was based on his recollection of the robbery, and that there was no question in his mind regarding the correctness of his identification"]; People v. Ingle (1986) 178 Cal.App.3d 505, 511-512 ["an eyewitness identification at trial following a pretrial identification from a photo lineup is not precluded unless the photographic identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification"]; Neil v. Biggers (1972) 409 U.S. 188, 199 (Neil).) This further diminished the utility of a midtrial continuance to permit the defense to attempt to establish that the photographs were improperly suggestive.

In addition, the fact that Lomer's identification was the third unequivocal identification of Parra during the trial significantly decreased the potential value of the evidence the defense was seeking -- evidence which would have impeached only one of the three witnesses who identified Parra as the assailant.

Officer Senkel testified that he saw Biondo and Parra "rolling around" on the ground "[s]truggling, trying to overpower one another." Senkel was "[a] hundred percent" certain that Parra was the inmate struggling with Officer Biondo. This testimony was essentially unimpeached, and was bolstered by the fact that Senkel had known Parra for about six months prior to the assault and was close enough to Parra during the incident to hit him with his baton.

Officer Biondo, the victim of the assault, also testified that he was "a hundred percent certain it was inmate Parra" who assaulted him. The only impeachment of Biondo came from Biondo's own testimony that he had pepper spray in his right eye, obscuring his vision out of that eye, but Biondo repeatedly emphasized that his "left eye was clear," and that he was able to observe Parra with that eye as Parra came at him from the left and then wrestled with him face-to-face.^[6] Thus, while identification was an issue in the case, the potential that the defense would be able to partially impeach Officer Lomer's identification of Parra if granted a continuance was considerably less compelling than it might have been had Officer Lomer been the sole identification witness, rather than one of three witnesses, who definitively identified Parra as Biondo's assailant at trial.^[7]

In sum, given that the benefit to be obtained from a midtrial continuance -- an opportunity to establish that the photographs shown to Officer Lomer were improperly suggestive -- was speculative at best, and even if this benefit had been obtained it would have had little effect on the overall case against Parra, we cannot conclude that the trial court abused its discretion in denying the request for a midtrial continuance.^[8]

II

The Trial Court Did Not Err in Instructing the Jury Pursuant to CALJIC No. 2.92

Parra contends that the trial court erred in instructing the jury pursuant to CALJIC No. 2.92 that "[i]n determining the weight to be given eyewitness identification testimony, you should consider" the "extent to which the witness is either certain or uncertain of the identification."^[9] Parra contends that the instruction is erroneous because scientific experts dispute the proposition implicit in this instruction -- that eyewitness certainty correlates with the accuracy of an identification. We conclude the trial court did not err. Our Supreme Court has approved the challenged instruction on two occasions, and in doing so, rejected a challenge virtually indistinguishable from that now made by Parra.^[10]

In People v. Wright (1988) 45 Cal.3d 1126 (Wright), our Supreme Court concluded that "CALJIC No. 2.92," including the portion of that instruction challenged by Parra, "should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (Wright, at p. 1144.) Again, in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), our Supreme Court approved CALJIC No. 2.92 and specifically rejected a challenge to the portion of the instruction concerning witness certainty. (Johnson, at p. 1232 ["The trial court did not err . . . in instructing the jury on the 'certainty' factor"].) In fact, in Johnson, the court found no error in the eyewitness certainty instruction despite the fact that the defense had presented expert testimony "without contradiction" at trial that "a witness's confidence in an identification does not positively correlate with its accuracy." (Id. at p. 1231; see also People v. Arias (1996) 13 Cal.4th 92, 168 [including "the level of certainty displayed by the witness at a suggestive confrontation," among "factors to be considered" in evaluating whether identification testimony should be suppressed], citing Neil, supra, 409 U.S. at pp. 199-200; People v. Clark (1992) 3 Cal.4th 41, 135 ["the level of certainty of the identification" is a factor to be considered in determining admissibility of identification].)

Thus, in light of our Supreme Court's repeated pronouncements that the certainty factor enumerated in CALJIC No. 2.92 is proper and "should be given" by the trial court (Wright, supra, 45 Cal. 3d at p. 1144), we are required to reject Parra's contention that the trial court erred by giving the instruction -- especially considering that the trial court did so at Parra's own request. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [both trial and appellate courts must follow Supreme Court precedent]; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 [rejecting challenge to eyewitness certainty factor enumerated in CALJIC No. 2.92 based on Supreme Court's approval of CALJIC No. 2.92 in Wright and Johnson], disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.)

Parra argues that the 14-year-old holding of Johnson is no longer valid because "it has now been firmly established, based upon numerous scientific studies, that there is no correlation between witness confidence and accuracy." We do not agree that we can disregard Johnson on this ground.^[11]

Contrary to Parra's contention, the scientific evidence available at the time Johnson was decided was not appreciably different from the evidence cited by Parra in his brief. Of the 12 scientific studies Parra relies on for his contention that eyewitness certainty does not correlate with accuracy, 10 were published prior to Johnson.

In addition, our Supreme Court was well aware of the scientific evidence which called into question the certainty factor in CALJIC No. 2.92 when it approved the instruction in Wright and later reiterated that approval in Johnson. Four years prior to Wright, our Supreme Court recognized that "the majority of recent studies have found no statistically significant correlation between confidence and accuracy" (People v. McDonald (1984) 37 Cal.3d 351, 369), and in Wright itself, the majority rejected Justice Mosk's contention that in light of the overwhelming weight of scientific opinion, the certainty factor in CALJIC No. 2.92 was erroneous. (Wright, supra, 45 Cal.3d at p. 1159 (dis. opn. of Mosk, J.) [contending that certainty factor in CALJIC No. 2.92 is erroneous because the presumption implicit in that instruction "is apparently mistaken: as we explained in McDonald (37 Cal.3d at p. 369), there is in fact a 'lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification' "].) Thus, it is clear that at the time it decided Johnson and Wright, our Supreme Court was well aware of the conflict Parra raises between the scientific evidence and CALJIC No. 2.92, and consequently, we are not at liberty to disregard those cases on the ground that this conflict is somehow now more "firmly established."^[12]

III

The Trial Court's Sentencing of Parra Under California's Determinate Sentencing Laws

Did Not Violate the Federal Constitution

Parra's last contention is that by imposing an upper-term sentence in accordance with California's determinate sentencing law, the trial court violated his rights to a jury trial under the federal constitution, as interpreted in Blakely, supra, 542 U.S. 296. We reject Parra's argument.

Our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black) addressed the effect of the United States Supreme Court decisions in Blakely, supra, 542 U.S. 296, and in United States v. Booker (2005) 543 U.S. 220 on California's determinate sentencing law (DSL). The Court held that the DSL, which allows judicial factfinding when a judge exercises discretion to impose an upper-term sentence, does not implicate a defendant's federal constitutional right to a jury trial. Rather, the DSL "simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (Black, at p. 1254.) Thus, based on Black, we affirm the trial court's imposition of an upper-term sentence.^[13] (People v. Brock (2006) 141 Cal.App.4th 1320, 1328 [rejecting identical challenge as barred by Supreme Court precedent].)

DISPOSITION

Affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Parra made a pretrial discovery request for "[a]ll photographic 'line-ups', if any, shown to any person during the investigation of the alleged crimes . . . ."

^[3] Parra does not challenge the trial court's denial of his request to dismiss the case.

^[4] As noted above, we assume, without deciding, that the prosecution had an obligation to disclose Officer Lomer's review of the photographs and the photographs themselves prior to trial. (See People v. Lawrence (1971) 4 Cal.3d 273, 278 [holding that any impropriety in use of a photographic lineup can be remedied by cross-examination at trial "[a]s long as the photographs from which the witness made his identification are preserved and available at trial"]; People v. Wright (1985) 39 Cal.3d 576, 590 [prosecutor has duty to disclose "evidence relating to the credibility of prosecution witnesses"]; but see People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315, 1317 [holding that "information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material," and noting that the California Department of Corrections "has a hybrid status: part investigatory agency, and part third party"].) The Attorney General does not contend otherwise.

^[5] While the fact that Parra's identification card was included in a set of "all the inmates . . . believed to be involved" is itself somewhat suggestive, that fact had already been elicited on cross-examination, and thus did not support the granting of a continuance.

^[6] Officer Biondo also testified that prior to the assault he had known Parra for "at least a good year," and that after Parra was subdued, Biondo sat on top of him -- giving Biondo a significant period of close contact with Parra to determine his identity.

^[7] We also note that the record supports the trial court's finding of an absence of bad faith in the belated disclosure of Officer Lomer's reliance on photographs to identify Parra -- a finding that is not contested on appeal. As there was no suggestion in the record that the prosecutor or any of the correctional officers intentionally delayed disclosure of this information, the need for the trial court to impose some sort of sanction to prevent future discovery violations was diminished. (Cf. People v. Cooper (1991) 53 Cal.3d 771, 811 [no sanction required for destruction of potential evidence where no bad faith shown].)

^[8] We also reject Parra's conclusory contentions that the trial court's ruling "implicated" Parra's "constitutional rights to a fair trial, effective counsel, and confrontation," and "violated [his] federal constitutional rights" in light of our conclusion that the trial court acted within its discretion in denying the continuance request. "These matters are, of course, arguable, and other judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional." (Ungar v. Sarafite (1964) 376 U.S. 575, 591.)

^[9] The instruction reads in pertinent part: "In determining the weight to be given eyewitness identification testimony, you should consider . . . factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following: . . . The extent to which the witness is either certain or uncertain of the identification . . . ." (CALJIC No. 2.92.)

^[10] Although Parra did not object to the instruction below, and, in fact, jointly (with the prosecutor) submitted the instruction to the trial court, we assume for purposes of this appeal that he may nevertheless challenge the instruction because the record does not "clearly reflect[] that counsel had a deliberate tactical purpose in requesting it." (People v. Hernandez (1988) 47 Cal.3d 315, 353; § 1259.)

^[11] Parra makes no effort to distinguish the language in Wright that commands that CALJIC No. 2.92 "should be given," and the Wright majority's implicit rejection of Justice Mosk's contention in dissent that the certainty factor is improper because it is contradicted by scientific evidence. (Wright, supra, 45 Cal. 3d at p. 1144.)

^[12] Parra also tries to distinguish Johnson by pointing out that in Johnson the defense had presented expert testimony that eyewitness certainty did not correlate with accuracy, and the trial court had instructed the jury that it could consider expert testimony in evaluating the eyewitness identification. We do not believe this distinction supports Parra's argument. The fact that Parra, unlike the defendant in Johnson, chose to present no evidence regarding eyewitness certainty at trial weakens rather than strengthens his claim that the certainty instruction was improper. If, as our Supreme Court held in Johnson, an eyewitness certainty instruction is proper despite undisputed, contrary expert evidence presented at trial, it must also be proper when there is no such evidence.

^[13] Parra argues that Black, supra, 35 Cal.4th 1238, was wrongly decided, but concedes that we are bound by that opinion.