Filed 1/31/19 P. v. Henderson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Montie Kamarie Henderson was convicted of first degree residential robbery with personal use of a firearm. On appeal, defendant contends an in-court identification procedure using a single photograph was unduly suggestive and violated his due process rights. We disagree and affirm the judgment.

I. BACKGROUND

Defendant was charged by information with first degree residential robbery. (Pen. Code,[1] § 211.) In connection with the charge, the information also alleged an enhancement for personal use of a firearm (§ former 12022.5, subd. (a)(1), § 12022.53, subd. (b)), and a prior felony strike conviction (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)).

A. The Residential Robbery

On January 7, 2015, at approximately 3:00 p.m., E.C. heard a knock at his front door. He asked “yes?” but received no response. Upon seeing a U-Haul truck in his driveway, E.C. exited his home, approached the truck, and saw a Black female sitting in the passenger side of the truck. The woman refused to speak with him and, shortly thereafter, two Black males ran toward him from around the side of the house. Both men pointed guns at E.C., told him to stay out of their way, and ran into his house.

E.C. followed the men into his house, where he observed the younger Black man opening drawers in his bedroom. When E.C. confronted him, the younger man pulled out his gun, threatened to kill E.C., and told him to leave. E.C. did not leave, but instead complied with an instruction to sit down. The man proceeded to take various items, including jewelry, rings, watches, and cufflinks. The older Black man subsequently entered the bedroom, drew his gun and threatened E.C., and took a briefcase from one closet and put various items inside.

The two men subsequently left the house with the briefcase and other stolen items. E.C. saw the truck was gone, locked the front door, and called 911. He informed the 911 operator the truck was “big” and “white” with two doors and had “moving” written on the passenger side. He did not remember any other colors or logos, but stated it was similar to a U-Haul truck. He described the men as “two young Black males” in their 20’s, and the woman as “dark-skinned” and “young.”

Vallejo Police Officer Jason Bauer and his partner, Officer Jay McLeod, were on patrol when they received a dispatch around 3:08 p.m. regarding the robbery. The police broadcast stated the suspects were two Black adult males and one Black adult female and identified the vehicle as a white box truck. While Bauer and McLeod were driving toward the location of the robbery, Bauer observed a mostly white box U-Haul truck with two Black male occupants driving in the opposite direction. McLeod made a U-turn and they initiated a traffic stop. As the truck slowed, defendant jumped out of the passenger side of the truck and fled from the police. Following a chase, another officer apprehended defendant. Bauer then retraced the path he believed defendant took while fleeing from the police. While doing so, Bauer located a silver colored revolver with black tape around its grip. He also located a pink cell phone that appeared to operate as a police scanner. The truck was being driven by the codefendant, and a woman was seated on the floorboard between the two seats. Bauer also saw a brown briefcase inside the box truck.

While E.C. was waiting for police, the 911 operator stated to him, “We may have . . . just so you know, Mr. [C.], it looks like we’re gonna have a delay in an officer coming to you because we may have found them and they’re now running from us.” She stated: “The officers are chasing somebody, and we are thinking it might be your guys. . . . It looks like we have one bad guy in custody, sir. . . . We’re not sure if he’s tied with your incident yet. But we—he ran from us, so he might be. We’ll see.”

Vallejo Police Officer Bradley Phillips and Corporal Robert Herndon were subsequently dispatched to E.C.’s home. The officers were aware suspects had been detained prior to speaking with E.C. Officer Phillips testified E.C. expressed concern he would not be able to identify the individuals who had robbed him, stating both that he could give descriptions of the individuals and “ ‘I could not identify them if they walked in my house.’ ” E.C. provided general descriptions of the robbers as dark-skinned Black men and provided an age description. Phillips believed he asked E.C. about the robbers’ height, facial hair, and clothing, but did not ask about scars or eye color. E.C. testified an officer informed him, “ ‘They caught them. Get in the car.’ ” Officer Phillips advised E.C. he needed to participate in an “in-field show-up.”

While driving to the in-field showup, Herndon read to E.C. the standard admonition given prior to in-field showups. That admonition stated, in relevant part: “ ‘The fact that the subjects are shown to you should not influence your judgment. You should not conclude or guess that the subjects or persons is [sic] the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties.’ ” E.C. advised Herndon he understood the admonition. Upon their arrival, E.C. sat in the back of one police car and defendant was removed from another police car approximately 10 yards away. Defendant was handcuffed at the time. The victim confirmed he had an unobstructed view and identified defendant without hesitation as the individual who robbed him. E.C. also identified without hesitation the codefendant and the woman arrested with him. Various items of property were returned to E.C., including a brown leather briefcase containing various watches and rings, cufflinks, and a property tax document. The property tax document had E.C.’s name printed on it. Additional jewelry was located in the codefendant’s pocket. All of the property and briefcase belonged to E.C.

At trial, defendant testified in his own defense. Defendant stated he walked to a family member’s house on the day of the robbery because he did not have a vehicle. Upon leaving, he called his godmother and asked for a ride. Defendant’s godmother picked him up in a U-Haul truck that the codefendant was driving. Defendant asked his godmother to use her phone because his was almost out of batteries. Before he could use it, however, a police car pulled up behind the truck. Defendant was carrying a firearm in violation of his prior felony conviction and knew he was subject to a mandatory search. Defendant decided to jump out of the truck and run because he did not want to go back to jail for unlawfully carrying a gun. After he was apprehended, defendant informed police he neither had a gun nor was he involved in a home invasion robbery. Defendant testified he lied to police about the gun but told the truth about the robbery.

B. The In-court Identification

At trial, the prosecution attempted to have E.C. identify the defendants as the robbers. The following exchange occurred:

“Q: Okay. You said this younger person was in your bedroom. Is this younger person in the courtroom today?

“A: He was what?

“Q: The younger person that you just described that you saw in your bedroom opening the drawers, is that person in the courtroom today?

“A: Is he home?

“Q: No, is he in this court today? Can you see him today, right now?

“A: The police identified them, and they are here being prosecuted.

“[Defense Counsel]: Objection, nonresponsive.

“THE COURT: Sir, do you recognize anyone here in the courtroom as being one of the persons who is [sic] in your house that day?

“THE WITNESS: My instinct says they are the two individuals who were in my house threatening to murder me and rob me. My instinct says, yes.

“[Defense Counsel]: I’ll object.

“THE WITNESS: They are present in front of me.

“[¶] . . . [¶]

“THE COURT: So, Mr. [C.], I need you to do me a favor here. It’s important that you testify as to observations and memory of the events. And if you can’t recognize or don’t recall specifically, that’s fine. But you just need to not assert opinions, but you need to just testify as to your observations. [¶] So, let me try this again. Do you recognize, not by instinct or deduction, but do you actually recognize anyone here in this courtroom as being present on that day?

“THE WITNESS: Being honest, man, I don’t recognize anyone.”

Later in E.C.’s testimony, the prosecution asked him to identify defendant based on a photograph taken the night of the robbery. The prosecution showed E.C. defendant’s photograph and asked, “Does that look familiar?” E.C. began by responding, “There are many people that look the same, but the background is the great cops . . . ,” but his answer was truncated by defense counsel’s objection. Following a side bar, the prosecutor instructed E.C. to “listen to my question very specifically and answer only my question.” The prosecutor then asked E.C. whether the individual “look[ed] familiar,” how he “recognize[d] that person,” and whether he “recognize[d] him from a particular place.” In response, E.C. unambiguously identified defendant from the photograph without hesitation. E.C. stated he recognized the individual, provided a brief physical description, and stated the individual was involved in the residential robbery.

Defense counsel objected to the photographic identification. He argued E.C.’s prior responses indicated he did not recognize the individual in the photograph. Defense counsel asserted E.C. “clearly is an intelligent man and asking him if he recognizes it, it is overly suggestive, and it’s unreliable identification.” The court rejected defense counsel’s argument. It noted “some of this is offered because of the manner in which everything was presented, neither of these defendants look close to what they look [sic] like on the day of the event.” The court concluded the identification procedure was not improper and commented defense counsel was “free to argue” about the suggestiveness of the identification and that any such identification was based on a presumption rather than E.C.’s memory.

An expert on eyewitness identification then testified for the defense. He explained how eyewitness identification is the largest source of erroneous convictions. He further testified people struggle to identify strangers under optimal conditions, and their ability to identify individuals becomes “significantly less accurate in stressful situations,” especially if those situations involve a weapon, multiple individuals, or someone of a different race. The expert then addressed various hypotheticals undermining the accuracy of E.C.’s in-field and in-court identifications.

During closing arguments, defendant’s counsel and counsel for the codefendant extensively challenged E.C.’s identifications. Defendant’s counsel, particularly, discussed in detail the disparity between defendant’s appearance and the description provided by E.C. of his assailants. These alleged differences included E.C.’s failure to note shaved lines and blond streaks in defendant’s hair, E.C.’s statement that defendant was not wearing any jewelry although the Vallejo property receipt showed he had earrings and a necklace on his person, E.C.’s failure to mention a scar on defendant’s forehead, and E.C.’s assessment that the younger robber was approximately four inches taller than defendant.

The jury convicted defendant of first degree residential robbery and found true the enhancement for personal use of a firearm. He was sentenced to 27 years in state prison. Defendant timely appealed.

II. DISCUSSION

On appeal, defendant challenges admission of E.C.’s in-court identification of defendant from a photograph. Defendant argues E.C.’s in-court identification was tainted by both the procedure used at trial as well as an unduly suggestive in-field showup in which defendant was initially identified.

A. Legal Standard

“A due process violation occurs only if the identification procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” (People v. Cook (2007) 40 Cal.4th 1334, 1355.) The defendant bears the burden of proving the identification procedure was so unfair as to abridge his or her right to due process. (People v. Avila (2009) 46 Cal.4th 680, 700.) Whether an identification procedure violates due process involves a two-step analysis. “ ‘ “[T]he court must ascertain (1) ‘whether the identification procedure was unduly suggestive and unnecessary,’ and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances.” ’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1162–1163 (Carter), superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096.) Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification. (People v. Thomas (2012) 54 Cal.4th 908, 930.) When examining whether an identification is reliable under the totality of the circumstances, we “ ‘tak[e] into account such factors 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.’ ” (People v. Kennedy (2005) 36 Cal.4th 595, 608, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458–459.) “ ‘ “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. Thomas, at pp. 930–931.) All evidentiary conflicts are resolved in favor of the trial court’s findings and are upheld if supported by substantial evidence. (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)

B. Validity of In-court Identification

Defendant first argues the identification procedure utilized at trial was unduly suggestive because E.C. was shown a single photograph, from which he did not immediately identify defendant. We disagree.

A single-person photographic showup is not inherently unfair or impermissibly suggestive. (People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).) “Showing the witnesses a single photo of the defendant is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom.” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008–1009.) “A single person photograph is analogous to a single person showup that ‘may pose a danger of suggestiveness, but such lineups or showups are not necessarily or inherently unfair.’ ” (People v. Chavez (2018) 22 Cal.App.5th 663, 674.) However, courts have found single-person showup procedures to be unfair when they are not neutral and unnecessarily suggest to the witness in advance the identity of the person suspected by the police. (People v. Yeoman (2003) 31 Cal.4th 93, 123–124; Ochoa, at pp. 412–413.) If the challenged procedure is not impermissibly suggestive, the due process claim fails. (Ochoa, at p. 412.)

Because the prosecution’s use of a single-person photographic identification procedure is not, by default, impermissibly suggestive, we must assess whether the manner in which it was utilized was unduly suggestive and unnecessary. (Carter, supra, 36 Cal.4th at pp. 1162–1163.) “ ‘A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.’ ” (Ochoa, supra, 19 Cal.4th at p. 413.) Here, defendant fails to identify any specific facts that render the in-court identification unfair. There is no evidence the prosecutor made any inappropriate comments or otherwise suggested the desired identification to E.C. prior to asking him to identify defendant. The prosecutor first asked, “Does that look familiar?” Following a side bar, the prosecutor then instructed E.C. to “listen to my question very specifically and answer only my question.” The prosecutor then asked E.C. whether the individual “look[ed] familiar,” how he “recognize[d] that person,” and whether he “recognize[d] him from a particular place.” In response, E.C. unambiguously identified defendant from the photograph without hesitation. E.C. stated he recognized the individual, provided a brief physical description, and stated the individual was involved in the residential robbery.[2] At no time did the prosecution suggest to E.C. which, if any, defendant he should identify. Moreover, E.C.’s acknowledgment that he did not recognize anyone in the courtroom suggests E.C. was not pressured to falsely identify defendant.

Nor can we conclude use of a photographic identification was unnecessary. The trial court noted “neither of these defendants look close to what they look like [sic] on the day of the event.” In light of defendant’s dramatically different appearance, use of a photograph was reasonable and necessary. (See Carter, supra, 36 Cal.4th at p. 1162 [first step is assessing “ ‘ “ ‘whether the identification procedure was unduly suggestive and unnecessary’ ” ’ ”].) Various federal courts have allowed in-court photographic identifications under such circumstances. (See, e.g., Walker v. Brown (E.D.N.Y. July 10, 2009, No. 08-CV-1254 (BMC)) 2009 WL 2030618, at p. *6 [use of arrest photograph after witness unable to identify defendant in court because defendant’s appearance “had changed significantly” was an “acceptable use of an arrest photograph for identification purposes at trial”]; Anthony v. U.S. (9th Cir. 1970) 433 F.2d 952, 954.)

Defendant fails to cite any authority to the contrary. Rather, he merely attempts to distinguish People v. Yonko, supra, 196 Cal.App.3d 1005, a case cited by the Attorney General. Undoubtedly, Yonko arose from a different factual scenario—the defendant failed to appear at trial and, in the defendant’s absence, the court allowed witnesses to identify the defendant from a booking photograph. (Id. at pp. 1008–1009.) But Yonko does not suggest in-court photographic identifications are only permissible when a defendant is absent from the courtroom.

The California Supreme Court also has distinguished in-court identifications from those made out of court. “ ‘[I]t has long been recognized that “[i]n the case of in-court identifications not preceded by a lineup . . . , the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury . . . .” [Citations.]’ [Citation.] This court’s decision in Evans[ v. Superior Court (1974)] 11 Cal.3d 617, ‘did not overrule the principle that an identification made in front of the jury carries with it the circumstances under which it was made, which, in turn, can be argued to and weighed by the jurors.’ ” (People v. Mena (2012) 54 Cal.4th 146, 162; accord U.S. v. Recendiz (7th Cir. 2009) 557 F.3d 511, 525 [“In the courtroom, a defendant does not have a constitutional right to the same type of identification procedure used in a police line-up, and the manner of an in-court identification is typically left to the trial court’s discretion.”].) Defendant had the opportunity to cross-examine E.C. and argue to the jury that the circumstances under which defendant was identified in court were unduly suggestive.

This process was explained at length by the California Supreme Court in People v. Alexander (2010) 49 Cal.4th 846. There, on the evening before trial, the prosecution showed a witness photographs of the defendant, and the witness identified the defendant as looking “ ‘closest to’ ” the person who had a shotgun. (Id. at p. 901.) The witness then testified about this identification at trial despite his inability to identify the defendant in court. (Ibid.) In affirming the identification procedure, the California Supreme Court stated: “We are unaware of any authority that suggests that, had the prosecution waited until [the witness] was on the witness stand to show him the photographs, and had [the witness] made the same identifications, such a procedure would be subject to a constitutional challenge. Rather, in such circumstances, defendant would have explored the reliability of the identifications on cross-examination. Here, the prosecutors showed [the witness] the exhibits the night before trial to learn what he would say about them before asking him in front of the jury. This was not an unduly suggestive and unnecessary procedure under the facts of this case, and we therefore need not evaluate the reliability of the identification. [Citation.] That [the witness] was allowed to testify he had identified defendant’s photographs as closely resembling the person who had the shotgun did not render defendant’s trial unfair. The circumstances of the identification were disclosed to the defense, they were the subject of thorough cross-examination, and the jury was able to evaluate the reliability of [the witness’s] identification . . . . As the high court stated in Manson v. Brathwaite (1977) 432 U.S. 98, 116, ‘[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.’ ” (Id. at p. 903.)

Defendant next argues the prior in-field showup was unduly suggestive and could have influenced E.C.’s in-court identification. However, we need not consider the alleged impact of the in-field showup because defendant failed to contest the propriety of the in-field showup in the trial court. Accordingly, that issue has been waived, and we will assume the in-field showup was properly executed. (People v. Cunningham (2001) 25 Cal.4th 926, 989; In re Michael L. (1985) 39 Cal.3d 81, 88 [the issue of a suggestive identification is waived if it is not raised in the trial court].)[3]

Even if we were to accept defendant’s position that the prior in-field showup was unduly suggestive, a later in-court identification must be submitted to the jury unless the totality of the circumstances suggests “ ‘a very substantial likelihood of irreparable misidentification.’ ” (Manson v. Brathwaite, supra, 432 U.S. 98, 105, fn. 8; see People v. Arias (1996) 13 Cal.4th 92, 168.) If the in-court identification is found to be independently reliable, then it could not have been tainted by the prior unreliable identification and thus no due process violation occurs; on the other hand, if the in-court identification is not independent of the suggestive pretrial identification, the in-court identification is an unconstitutional invasion of due process. (People v. Greene (1973) 34 Cal.App.3d 622, 645–646; People v. Arias, at p. 168; accord Manson v. Brathwaite, at p. 114.)

Other than asserting the in-field showup “could well have influenced” E.C.’s in-court identification, defendant offers no facts, analysis, or authority to support this proposition. Nothing in the record suggests E.C.’s in-court identification was dependent on the prior in-field showup. To the contrary, E.C. testified he recognized the individual in the photograph from the robbery, not the showup. And the evidence supports E.C.’s testimony. The home invasion occurred during the day, and E.C. spent the entirety of the robbery in the presence of the robbers. There is no evidence that E.C. was unable to observe the robbers’ faces. E.C. subsequently described their physical appearances, estimated ages, clothing, and vehicle. Much of E.C.’s description was general (e.g., two Black men and one Black woman), but accurate. While certain aspects of E.C.’s description did not match defendant, such as omitting dyed blond lines on one side of defendant’s hair and believing defendant to be taller than he is, the accuracy of E.C.’s description and identification was challenged by defense counsel and properly placed before the jury. (See People v. Boyer (2006) 38 Cal.4th 412, 480 [courts do not resolve credibility issues or evidentiary conflicts and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence].) E.C. was unambiguous in his identification, responding “Yes” to whether the individual in the photograph looked familiar and stating, “I recognize him from a robbery in my house.” Had E.C. believed he should simply identify the individuals arrested by the police, he would have done so when asked to identify defendant in the courtroom. Instead, E.C. conceded he did not recognize anyone in the courtroom.

In light of our conclusion that the procedure resulting in E.C.’s in-court identification of defendant was not impermissibly suggestive under the circumstances, “ ‘our inquiry into the due process claim ends.’ ” (Ochoa, supra, 19 Cal.4th at p. 412.) The jury was properly allowed to hear E.C.’s identification testimony, and to evaluate it in connection with the weaknesses the defense repeatedly highlighted.

III. DISPOSITION

The judgment is affirmed.

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Margulies, J.

We concur:

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Humes, P. J.

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Banke, J.

A150007

People v. Henderson