People v. White CA2/7 ( 2014 )

Filed 10/20/14 P. v. White CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B249716
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA081001)
v.
DERRICK WHITE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa B. Lench, Judge. Reversed and remanded with directions.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Derrick White appeals from the judgment entered upon his convictions of second
degree robbery (Pen. Code, § 211) and possession of a firearm by a felon (Pen. Code, §
12021, subd. (a)(l).)1 Appellant contends that the trial court committed a number of
reversible errors, including that the court erred: (1) when it denied appellant’s motion
pursuant to Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess) for an in camera
review of police officers’ records; (2) when it denied a motion to suppress the evidence
of witnesses’ identifications of appellant from a suggestive field show up; and (3) in
sentencing appellant. As we shall explain, appellant’s contentions related to his Pitchess
motion and sentences have merit. Appellant met the low threshold required to warrant an
in camera hearing on his motion for discovery of police records and he demonstrated that
the court erred in sentencing him. Nonetheless, appellant failed to show that the
witnesses’ identifications were the result of an impermissibly suggestive show-up.
Accordingly, we conditionally reverse the judgment and order a limited remand with
respect to the Pitchess motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Robbery of the Super Bargain Store
On February 2, 2009, shortly before 7:30 p.m., a man, later identified as appellant,
wearing a black jacket, black pants, black shoes, black gloves and a black hat entered the
Super Bargain, a 99 Cents Store in Long Beach. Appellant asked John Melliza, the store
manager, for help finding index cards. After assisting appellant find index cards, Melliza
returned to his office in the store.
Hilda Cortez worked as a cashier in the store that evening. Appellant entered
Cortez’s line and placed a bag of chips on the counter next to the cash register. Cortez
“got a good look at [appellant’s] jacket” at the time. Appellant asked Cortez for
assistance to locate flash cards. Cortez directed him to where he could find the cards.
Appellant then returned to the register area and waited in line. When he reached the front
1 All references to statute are to the Penal Code unless otherwise indicated.
2
of the line, Cortez charged him for the items, and appellant handed her money. When she
opened the cash register, appellant pulled a gun out of his pocket and pointed it at Cortez.
He took the cash drawer out of the register and walked out of the store. Cortez informed
Melliza the store had been robbed.2
B. The Pursuit
Melliza called 9-1-1 and walked out of the store in search of the robber. Melliza
saw appellant quickly walking past a pizza store, holding the cash register drawer.
Melliza followed him.
At the time, Mohammad Itani, a taxi driver, sat in his taxi in the parking lot of the
Super Bargain store. Itani saw appellant carrying the cash register drawer while walking
out of the parking lot. Itani also observed appellant pick up money that had fallen from
the cash register drawer. Itani observed appellant as appellant walked in front of the taxi,
approximately five feet away. According to Itani, appellant wore a hip-length black
jacket and dark pants.
Melliza approached Itani and told him that the man with the cash register drawer
had just robbed the store. Itani and Melliza followed appellant on foot. Itani and Melliza
remained about 15 feet behind appellant. Appellant walked out of the parking lot in the
direction of several apartments; as he walked money fell out of the register drawer that
appellant carried. At one point it appeared that appellant was attempting to hide under a
parked truck. However, appellant started walking again but stopped when he reached a
dead end. He turned toward Itani and Melliza, pulled out a gun, and said, “Get out of
here.” He fired the gun once in the air above his head. Appellant was about 40 feet away
from Itani and Melliza at the time. Before appellant discharged the gun, Itani saw a
woman exit from a parked red car nearby. Itani saw appellant approach and get into the
2 Video surveillance from the store showed the transaction and the robbery from
different angles. The videos were played for the jury during appellant’s trial.
3
red car; Itani saw the car drive southbound on Atlantic Avenue. Melliza told the 9-1-1
operator that the robber got into a red car.
C. The Police Pursuit
Long Beach Police Officer Nicholas Kent responded to the 9-1-1 call. The 9-1-1
call described the suspect as an African-American man in his 30’s wearing a black jacket.
The getaway car was described as a red four-door vehicle, with a female passenger,
traveling southbound on Atlantic Avenue.
Minutes after the 9-1-1 dispatch, Officer Kent saw a vehicle matching the
description with a female driver. Officer Kent followed the red vehicle as it turned into a
residential area where it ran two stop signs. A helicopter with a spotlight as well as two
other patrol cars joined the pursuit of the red vehicle.
During the pursuit, a black cash register drawer and a glove were thrown out the
front passenger window of the red vehicle. The red vehicle continued into a residential
neighborhood, ran several stop signs, and made several turns. At several points during
the pursuit, money was thrown from the front passenger window. Officer Kent testified
that he was never more than three car lengths from the red vehicle during the pursuit.
At one point during the chase, Rosalio Nuno, who lived at the intersection of
Poppy and Walnut, saw a red vehicle followed by patrol cars and a helicopter pass by his
house. As the red vehicle passed, Nuno saw a gun thrown out of the car. The gun was
loaded and the safety clip was off.
The red vehicle entered a Food 4 Less parking lot and parked. The police
instructed the passenger and driver via loudspeaker to exit the vehicle. A woman exited
from the driver seat. Police placed handcuffs on her and placed her in a patrol car.
The police ordered appellant out of the car. Appellant wore one yellow boot and
one black tennis shoe. Appellant was ordered to lie down on the parking lot ground. He
was placed in handcuffs, and searched. Appellant’s wallet contained a large amount of
cash. Money was also found in various places in the red vehicle (e.g., between the seats
4
and in the glove box). The police found a yellow work boot, a black jacket, and a black
tennis shoe in the vehicle.3
D. Witnesses’ Identifications of Appellant at the Field Show-up in the
Food 4 Less Parking Lot
Melliza’s Identification. A Long Beach police officer drove Melliza to the
Food 4 Less parking lot for a field show-up. En route, the officer told Melliza that he
was taking him to identify “the suspect” and that person in custody may or may not be
the robber. Melliza read and signed the field show-up admonition form.4 Melliza saw a
red vehicle approximately 25 feet from several parked patrol cars. The parking lot was
illuminated by the parking lot lights and patrol car lights. A spot 20 feet from the patrol
car was illuminated with a patrol car spotlight. Appellant, was brought to the lit area; he
was the only African-American among those present. Appellant wore a white shirt, blue
jeans, and yellow work boots. Appellant was in handcuffs, and the officers stood beside
him. Melliza identified appellant as the person who fired his gun in the air.
Two months after the robbery, at the preliminary hearing, Melliza identified
appellant as the robber. During trial, Melliza identified appellant in court as the suspect
from the field show up. Melliza was 100 percent sure of his field show-up identification,
his preliminary hearing identification, and in-court trial identification.
Itani's Identification. An officer interviewed Itani for 15 minutes at the Super
Bargain store shortly after the 9-1-1 call. About an hour after the robbery, Itani was
transported to the Food 4 Less parking lot. The officer told Itani that the police had a
suspect in custody and wanted him to determine if the person in custody was the robber
3 The yellow work boot and black tennis shoe appellant wore when he got out of the
car matched the yellow boot and black shoe found in the car.
4 The admonition advises the witness that the person detained for viewing may or
may not be the person who committed the crime and that the fact that the person is
detained and may be handcuffed should not be an influencing factor.
5
or not. Itani was read the field show-up admonition, and Itani signed the field show-up
admonition form. Appellant was 10 to 15 feet away from Itani, illuminated by the
parking lot lights and the spotlight from a patrol car. He was handcuffed.
Itani identified appellant as the man who fired the gun but said that he was missing
a black jacket. Itani also stated that appellant’s shirt and pants were not the same as what
the robber had worn earlier. A police officer took a black leather jacket out of the red
vehicle and put it on appellant. Itani again identified appellant. Itani believed the red car
in the Food 4 Less parking lot was the same red car he observed that evening. Itani
identified appellant in court as the suspect from the field show-up.
A second suspect, a woman, was also shown to Itani during the show-up. Itani
identified the woman as the woman he saw standing outside the red car earlier when the
gun was fired. She had changed pants, but Itani recognized the sunglasses on her head.
Itani identified her immediately.
Cortez's Identification. The police interviewed Cortez about 30 minutes after the
robbery, Cortez was also transported to the Food 4 Less parking lot. The police read the
field show-up admonition to Cortez and Cortez recalled signing the card. Cortez sat in a
patrol car, and appellant stood 25 feet away, handcuffed with two police officers standing
next to him. Cortez identified appellant as the robber. It “took [her] a while” because
Cortez said appellant was wearing different clothes. Cortez also said that appellant was
not wearing the leather jacket and beanie he had been wearing during the robbery.
However, Cortez said she “recognized his face.” When the police were advised of
Cortez’s statement, an officer found a black leather jacket in the red vehicle and placed it
on appellant. Cortez identified the jacket as the one worn by the person who robbed the
store. Cortez also identified the gun (recovered during the chase) as the gun used during
the robbery. Cortez identified appellant in court as the man who robbed the store that
evening.5
5 During the trial appellant presented testimony from an investigator, Gary Cooper,
that he had retained to assist him in preparing for his defense. The investigator
6
Appellant was charged with second-degree robbery, criminal threats, and
possession of a firearm by a felon. It was also alleged that appellant used and discharged
a firearm and that appellant had four prior “strikes,” five prior serious felonies, and five
prior prison terms.
Prior to trial, appellant filed a motion pursuant to Pitchess to obtain discovery of
police personnel records for the 30 officers involved in his arrest and the investigation
involving complaints of violence, excessive force, racial, gender and ethnic bias,
coercion, and misconduct amounting to moral turpitude (including planting evidence,
fabrication of reports, charges, false arrest, destruction of evidence or fabricating
probable cause, concealing information, improperly influencing witnesses and perjury).
Counsel’s declaration in support of the motion stated that police officers used excessive
force in removing appellant from the vehicle, assaulted him causing serious injury, and
then covered up their use of excessive force by falsely arresting appellant based on
fabricated evidence and testimony. The trial court denied the motion without prejudice.
Appellant filed a second Pitchess motion limited to 17 officers, asserting that
appellant did not commit the robbery or possess a gun that evening, that the police
stopped the wrong red car, that appellant’s clothing description did not match that given
on the police radio call, and that the police fabricated evidence and testimony to cover up
their use of excessive force in arresting appellant. The court denied the second Pitchess
motion. The court refused to conduct an in camera hearing, concluding that in view of
the other evidence it did not present a plausible scenario of police misconduct.
interviewed Cortez two years after the robbery. Cooper testified that Cortez told him that
she could not recall anything about the robber’s face. According to Cooper, Cortez stated
that she never told the police that she could identify the suspect in the Food 4 Less
parking lot and never identified appellant as the robber. Cortez stated that she tried to
identify the suspect at the field show-up based on his clothing. According to Cooper,
Cortez told the police she was not sure if the suspect in custody was the robber because
he was wearing different clothes and could not identify the jacket and a gun the police
showed her. Cortez told Cooper that she did not recall being read a field show-up
admonition or signing the form. When asked about her interview with Cooper at trial,
Cortez denied that she told Cooper that she did not recognize appellant and did not recall
telling Cooper that she failed to identify appellant during the show-up.
7
Appellant also filed a motion to suppress the field show-up identifications of
Cortez, Melliza and Itani, and Melliza’s in-court identification of appellant at the
preliminary hearing on the grounds that the field show-up was unreasonably suggestive
and conducive to irreparable mistaken identification. He also argued that any subsequent
in-court identification was tainted by the field show-up. The trial court disagreed and
denied the motion.
The jury found appellant guilty of second degree robbery (count 1) and felon in
possession of a firearm (count 4). The jury also found the firearm use and discharge
allegations to be true. Appellant admitted his prior convictions. The trial court sentenced
appellant to prison for 95 years to life calculated as follows: as to count 1, 25 years to
life, plus 20 years (§ 12022.53, subd. (c)); and as to count 4, a consecutive 25 years to
life. The trial court imposed an additional consecutive 25 years for the five prior serious
felonies (§ 667, subd. (a)). Appellant was awarded 1,844 days total presentence credits,
consisting of 1,604 days of actual custody and 240 days of conduct credit. Appellant was
also ordered to pay a $280 restitution fine (§ 1202.4, subd. (b)), a $40 court security fee
(§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373); a $280
parole revocation fine (§ 1202.45) was imposed and stayed.
Appellant filed this appeal.
DISCUSSION
I. The Trial Court Erred in Denying Appellant’s Second Pitchess Motion.
Appellant contends that the trial court erred when it failed to grant his motion to
conduct an in camera review of police personnel records.
A. Factual Background of the Pitchess Proceedings
Appellant filed a motion for pretrial discovery pursuant to Pitchess requesting the
peace officer personnel records for 30 Long Beach police officers, including complaints
pertaining to violence, excessive force, racial or gender bias, coercion, and misconduct
amounting to moral turpitude (including planting evidence, fabrication of reports or
probable cause, and perjury). Appellant’s counsel’s declaration in support of the motion
stated that Long Beach police officers used excessive force in removing appellant from
8
the vehicle, assaulted him, and covered up their use of force by arresting appellant based
on fabricated evidence and testimony. Counsel claimed that the materials sought would
be relevant to the defense’s case because past instances of false arrests or fabrication of
charges and evidence would establish the officers acted in this case in conformity with
past habits. It would also be relevant to the officers’ character and for purposes of
impeachment.
The City of Long Beach filed a written opposition to the motion, arguing, among
other grounds, that the motion: was overbroad because it requested discovery as to some
officers who were not actively involved in the arrest and field show-up; failed to provide
a specific factual scenario establishing a plausible factual foundation as to the misconduct
alleged; and improperly requested documents regarding excessive force.
At the hearing, appellant’s counsel argued that the documentation in the form of
the radio call and the police report showed that appellant was never the driver of the red
vehicle and that the officers lost sight of the red vehicle at some point and were possibly
following two red vehicles. Counsel argued the motion set forth a plausible scenario—
namely that the police officers fabricated evidence and falsely arrested appellant to cover
up their mistakes.
The trial court characterized appellant’s motion as a “fishing expedition.” The
trial court denied the Pitchess motion, without prejudice, because it failed to satisfy the
standard under People v. Warrick (2005) 35 Cal. 4th 1011 (Warrick) by stating a plausible
scenario as to officer misconduct as to each officer alleged.
Subsequently, appellant filed a second Pitchess motion, which requested the same
materials but limited to 17 Long Beach police officers. Appellant’s counsel’s declaration
in support of the renewed motion was similar to the declaration submitted in support of
the first Pitchess motion. In addition, the declaration described the circumstances of the
show-up. Counsel asserted that appellant did not commit the robbery or possess a gun,
that the police stopped the wrong red car, that appellant’s clothing did not match the
description of the robber as relayed on the police radio call, and that the police fabricated
evidence and testimony to cover up their use of excessive force in arresting appellant.
9
Appellant submitted the police inmate property receipt, which did not list yellow work
boots, though the police report indicated that appellant wore a yellow work boot at the
time of his arrest. Appellant also presented a form from a gunshot residue test in which
the criminalist noted appellant’s hands were dirty, which appellant argued showed that he
was pushed onto the ground during the arrest.
At the hearing, appellant’s counsel stated that although the second motion was
similar to the first motion, the additional evidence submitted showed appellant had dirty
hands from being pushed into the dirt during his arrest. Counsel maintained that she had
presented a plausible scenario (i.e., the police stopped the wrong red car) to meet the
Warrick standard.
The trial court stated that it “looked carefully” at both Pitchess motions, as well as
the attached documentation. The court noted that three independent third-party witnesses
identified appellant as the robber. Accordingly, the trial court stated that it did not
believe there was any basis for officer misconduct. As to the discovery regarding
excessive force, the court found no connection between the excessive force allegation and
the three counts charged against appellant, and also found that the force was not
6
excessive under the circumstances. The trial court denied the Pitchess motion.
B. Relevant Legal Principles
Although police officer personnel records are generally confidential, a criminal
defendant is entitled to discover the content of such records if the information contained
in the records is relevant to his ability to obtain a fair trial or to defend against pending
charges. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 536-538.) The process by
6 At a later hearing, defense counsel attempted to file a third Pitchess motion,
arguing that appellant could further narrow down the officers involved based on his
recent recollection of the specific officers who had assaulted him during the arrest. The
trial court noted that once a Pitchess motion has been denied, the defense is not permitted
to file another Pitchess motion unless there is new information. The trial court concluded
that there was no new evidence that would permit appellant to file a third Pitchess
motion. Before this court, appellant does not argue that the trial court erred in denying
him the opportunity to file a third Pitchess motion.
10
which a criminal defendant may discover personnel records is codified in Evidence Code
sections 1043 to 1045. Initially, the defendant must submit a motion accompanied by an
affidavit or declaration “showing good cause for the discovery or disclosure sought” and
“setting forth the materiality thereof to the subject matter involved in the pending
litigation.” (Evid. Code, § 1043, subd. (b)(3).) “To show good cause as required by
[Evidence Code] section 1043, [the] declaration in support of a Pitchess motion must
propose a defense or defenses to the pending charges” and “articulate how the discovery
sought may lead to relevant evidence or may itself be admissible direct or impeachment
evidence [citations] that would support those proposed defenses.” (Warrick v. Superior
Court, supra, 35 Cal.4th at p. 1024.) The declaration “must also describe a factual
scenario supporting the claimed officer misconduct.” (Ibid.)
To determine whether the defendant has established good cause for in-chambers
review of an officer’s personnel records, the trial court makes the following inquiry: “Has
the defense shown a logical connection between the charges and the proposed defense?
Is the defense request for Pitchess discovery factually specific and tailored to support its
claim of officer misconduct? Will the requested Pitchess discovery support the proposed
defense, or is it likely to lead to information that would support the proposed defense?
Under what theory would the requested information be admissible at trial? If defense
counsel’s affidavit in support of the Pitchess motion adequately responds to these
questions, and states ‘upon reasonable belief that the governmental agency identified has
the records or information from the records’ (Evid. Code § 1043, subd. (b)(3)), then the
defendant has shown good cause for discovery and in-chambers review of potentially
relevant personnel records of the police officer accused of misconduct against the
defendant.” (Warrick, supra, 35 Cal.4th at pp. 1026–1027.)
“[The] two-part showing of good cause is a ‘relatively low threshold for
discovery.’” (Warrick, supra, 35 Cal.4th at p. 1019, quoting City of Santa Cruz v.
Municipal Court (1989) 49 Cal. 3d 74, 83.) A defendant has met his or her burden if he
or she “presents an assertion of specific police misconduct that is both internally
consistent and supports the defense proposed to the charges” and the scenario described
11
“is one that might or could have occurred.” (Warrick, supra, 35 Cal.4th at p. 1026.) A
defendant’s factual scenario must be accepted if it is plausible; the trial court is not to
weigh or assess the evidence in order to determine whether the scenario presented is
“reasonably probable” or “apparently credible.” (Id. at pp. 1020, 1025-1026.) “The
relatively relaxed standards for a showing of good cause . . . [ensures] the production for
inspection of all potentially relevant documents. The in camera review procedure and
disclosure guidelines . . . guarantee, in turn, a balancing of the officer’s privacy interests
against the defendant’s need for disclosure.” (City of Santa Cruz v. Municipal Court,
supra, 49 Cal.3d at p. 84.)
Although the threshold for establishing entitlement to Pitchess discovery is low, it
is the defendant’s burden to meet that threshold. He or she must make an initial showing
that supports the materiality of the information sought. (People v. Hustead (1999) 74
Cal. App. 4th 410, 416.) The defendant is required to establish a “logical link between the
defense proposed and the pending charge” and “also to articulate how the discovery
being sought would support such a defense or how it would impeach the officer’s version
of events.” (Warrick, supra, 35 Cal.4th at p. 1021.) In deciding a Pitchess motion, the
trial court will generally have before it pertinent documents, such as the police report.
(See People v. Hill (2005) 131 Cal. App. 4th 1089, 1098-1099, disapproved in part on
another ground in People v. French (2008) 43 Cal. 4th 36.) But it is not the trial court’s
task to review the documents and develop a theory to support discovery of the requested
information. Where the defendant fails to assert in the supporting declaration “‘a specific
factual scenario of officer misconduct that is plausible when read in light of the pertinent
documents,’” the motion should be denied. (People v. Hill, supra, 131 Cal.App.4th at p.
1099.) “A motion for discovery of peace officer personnel records is addressed to the
sound discretion of the trial court, reviewable for abuse.” (Alford v. Superior Court
(2003) 29 Cal. 4th 1033, 1039.)
C. Appellant’s Contentions
Before this court, appellant argues that the trial court erred in denying his Pitchess
motion without an in camera hearing because he met the low threshold required by
12
Pitchess and Warrick by presenting a plausible factual scenario of officer misconduct,
namely, that the police stopped the wrong car, used excessive force in arresting him, and
then fabricated evidence and reports to cover up the use of force and false arrest. He also
claims he demonstrated that the discovery sought was material to his defense.
Turning first to the issue of materiality of the discovery to the charges and the
defense, under Warrick, appellant was required to show a logical connection between the
defense proposed and the pending charge and “also to articulate how the discovery being
sought would support such a defense or how it would impeach the officer’s version of
events.” (Warrick, supra, 35 Cal.4th at p. 1021.) Here appellant’s defense was that he
did not commit the robbery, did not possess the firearm and that the police stopped and
detained him by mistake.
In our view, appellant did not demonstrate the materiality to his defense of prior
complaints of excessive force. Although such evidence might assist him proving that the
police used unreasonable force in detaining him, none of the charges related to the use of
police force or appellant’s resistance of police force. Appellant does not claim that the
police coerced him in any way. Furthermore, although police use of excessive force
might motivate the police to engage in the other misconduct, it does not support his
defense—that the police stopped the wrong car. Similarly, appellant failed to show how
prior complaints of police improper bias (gender, racial or other bias) had any connection
to this case. Appellant did not claim that he was detained because he was African-
American; appellant was stopped based on the description of the car he was riding in at
the time. Consequently, the court properly denied appellant’s Pitchess motion seeking
discovery of evidence related to bias and excessive force for lack of materiality.
This notwithstanding, we conclude that on this record appellant met the “low
threshold” showing of good cause under Warrick for an in camera hearing with respect to
other evidence he sought in his motion. In our view, evidence relating to prior
complaints of police misconduct of falsifying evidence, destroying or concealing
evidence and fabricating reports was directly material to appellant’s claim of innocence
(i.e., that the police stopped the wrong person and covered up the mistake by planting
13
evidence and fabricating charges against him). In addition, appellant supplied a plausible
factual scenario for the claim of misconduct in light of the circumstances of the case. His
claim was supported by evidence of the radio call and the police report which appellant
argued suggested that he was not the driver of the red vehicle, that the officers lost sight
of the red vehicle at some point, and that police were possibly following two red vehicles.
This scenario is within the realm of possibility.
In reaching the opposite conclusion, the trial court cited the evidence of the
eyewitnesses who identified appellant at the scene of the arrest, finding that appellant’s
scenario was not believable. In so doing, the court engaged in a credibility assessment of
the evidence that is not permitted under Warrick. In this respect, the trial court’s role in
evaluation of a Pitchess motion is to determine whether the defendant’s factual scenario
might or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1026.) The trial court is
not to determine whether the scenario actually occurred, to resolve conflicts in the
evidence, or to weigh or assess the evidence in order to determine whether the scenario
presented is “reasonably probable” or “apparently credible.” (Id. at pp. 1020, 1025-
1026.) “Warrick permits courts to apply common sense in what is plausible, and to make
determinations based on a reasonable and realistic assessment of the facts and
allegations” (People v. Thompson (2006) 141 Cal. App. 4th 1312, 1319); however, trial
courts are not permitted to decide the persuasiveness of the defense in assessing a
Pitchess motion.
As evidenced by his description of the circumstances of the eyewitness
identifications in his counsel’s declaration in support of the Pitchess motion, and by his
subsequent motion to suppress the field identifications, in appellant’s view, the field
show-up was unfairly suggestive, the police intimidated the witnesses and/or told the
witnesses to identify appellant. This characterization of the eyewitness evidence not only
accounts for evidence directly connecting appellant to the crime, it is also consistent with
appellant’s scenario of police misconduct that he offered in this Pitchess motion.
In sum, we conclude appellant met his burden under Warrick. Appellant’s
assertion of police misconduct (i.e., the police falsified evidence, destroyed or concealed
14
evidence and/or fabricated reports to cover up the fact that they stopped the wrong
person) was internally consistent, supported the proposed defense to the charges and
described a plausible scenario. Accordingly we conclude that the trial court erred in
denying appellant’s second Pitchess motion.
The remedy for an erroneous Pitchess ruling is a limited remand to the trial court
to conduct an in camera review of the personnel files of the officers.7 If the trial court
finds discoverable materials in the files, it should disclose them to the defense. Appellant
would then have the burden of demonstrating to the trial court a reasonable probability of
a different outcome had the evidence been disclosed. Should appellant fail to
demonstrate prejudice under that standard, the judgment must be reinstated. (People v.
Gaines (2009) 46 Cal. 4th 172, 182.)
II. The Single Person Show-up Did Not Violate Appellant’s Constitutional Rights
Appellant also claims that the single person field show-up was suggestive and that
the subsequent identification of appellant by Melliza at the preliminary hearing was
tainted by the show-up. He contends on appeal that the trial court erred by denying the
motion to suppress evidence of the identifications from the show-ups. The trial court did
not err.
A. Factual Background
Prior to trial, appellant filed a written motion to suppress the evidence of the
identifications from the field show-ups as well as Melliza’s in-court identification of
appellant at the preliminary hearing on the grounds that the field show-up was
unreasonably suggestive and that any subsequent in-court identification was tainted by
7 In appellant’s second Pitchess motion he sought discovery of police personnel
files of 17 police officers. Because we conclude appellant carried his burden under
Pitchess only with respect to his claim that the police stopped the wrong car and arrested
the wrong person and thereafter falsified evidence, destroyed or concealed evidence
and/or fabricated reports to cover up their mistake, appellant is entitled to have the court
conduct an in camera review limited to those officers who were directly involved in the
police pursuit of the vehicle and of those officers at the scene of his arrest; and the court
is required to order disclosure of only evidence in the files related to claims of falsifying
evidence, destroying or concealing evidence and/or fabricating reports.
15
the field show-up. Specifically, appellant complained that he was the only person shown
to the witnesses, that he was the only African-American present, that he was surrounded
by officers, that the red car was parked nearby and that he was illuminated by a spot light.
The trial court denied the motion, stating appellant had not been able to show that, under
the totality of the circumstances, the show-ups gave rise to a substantial likelihood of
misidentification.
B. Relevant Legal Principles and Analysis
A field show-up is “an informal confrontation involving only the police, the victim
and the suspect.” (People v. Rodriguez (1987) 196 Cal. App. 3d 1041, 1049.) It is
different from a lineup which “‘is a relatively formalized procedure wherein a suspect,
who is generally already in custody, is placed among a group of other persons whose
general appearance resembles the suspect. The result [of a lineup] is essentially a test of
the reliability of the victim’s identification.’” (Ibid.) On the other hand, the principal
function of a field show-up is “‘prompt determination of whether the correct person has
been apprehended. [Citation.] Such knowledge is of overriding importance to law
enforcement, the public and the criminal suspect himself. [Citation.] An in-the-field
showup is not the equivalent of a lineup. The two procedures serve different, though,
related, functions, and involve different considerations for all concerned.’” (Ibid., citing
People v. Dampier (1984) 159 Cal. App. 3d 709, 712-713.)
A single person show-up is not inherently unfair. (Stovall v. Denno (1967) 388
U.S. 293, 302; People v. Bisogni (1971) 4 Cal. 3d 582; People v. Bauer (1969) 1 Cal. 3d
368, 374 (cert. den., 400 U.S. 927); People v. Burns (1969) 270 Cal. App. 2d 238, 246.)
The potential unfairness in singling out a suspect is offset by the likelihood that a prompt
identification shortly after the commission of a crime will be more accurate than a belated
identification days or weeks later. (People v. Cowger (1988) 202 Cal. App. 3d 1066,
1071; In re Carlos M. (1990) 220 Cal. App. 3d 372, 387 [“[S]ingle-person show-ups for
purposes of in-field identifications are encouraged, because the element of suggestiveness
inherent in the procedure is offset by the reliability of an identification made while the
events are fresh in the witness’s mind, and because the interests of both the accused and
16
law enforcement are best served by an immediate determination as to whether the correct
person has been apprehended.”].) A prompt on-the-scene confrontation between a
suspect and a witness enables the police to exclude from consideration innocent persons
so a search for the real perpetrator can continue while it is reasonably likely he or she is
still in the immediate area. (People v. Cowger, supra, 202 Cal.App.3d at pp. 1071-1072.)
“Such knowledge is of overriding importance not only to the police and the public, but
also to the suspect himself. [Citations.] An innocent person who has been apprehended
should not have to wait for the assembly of a lineup and the summoning of counsel while
the real culprit puts more time, and presumably distance, between himself and the focal
point of the offense. [Citations.]” (Ibid.)
However, a field show-up is not without constraints. “Due process require(s) the
exclusion of identification testimony only if the identification procedures used were
unnecessarily suggestive and, if so, the resulting identification was also unreliable.”
(People v. Yeoman (2003) 31 Cal. 4th 93, 123; see also Manson v. Brathwaite (1977) 432
U.S. 98, 106-114.) If a pretrial identification procedure suggests the identity of the
person to be identified in advance, then the procedure is unfair. (People v. Brandon
(1995) 32 Cal. App. 4th 1033, 1052.)
“‘The issue of constitutional reliability depends on (1) whether the identification
procedure was unduly suggestive and unnecessary [citation]; 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 criminal at
the time of the crime, the witness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at the confrontation, and
the time between the crime and the confrontation [citation]. If, and only if, the answer to
the first question is yes and the answer to the second is no, is the identification
constitutionally unreliable.’ [Citation.]” (People v. Ochoa (1998) 19 Cal. 4th 353, 412;
People v. Thomas (2012) 54 Cal. 4th 908, 930.) In other words, “[i]f we find that a
challenged procedure is not impermissibly suggestive, our inquiry into the due process
claim ends.” (United States v. Bagley (9th Cir. 1985) 772 F.2d 482, 492.) The defendant
17
bears the burden of demonstrating the identification procedure was unreliable. (Ibid.)
Unfairness must be proved as a “demonstrable reality,” not just speculation. (People v.
Contreras (1993) 17 Cal. App. 4th 813, 819.)
Appellate courts 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. Only if the challenged identification procedure is
unnecessarily suggestive is it necessary to determine the reliability of the resulting
identification. (People v. Thomas, supra, 54 Cal.4th at p. 930; People v. Alexander
(2010) 49 Cal. 4th 846, 901-902; see also People v. Cunningham (2001) 25 Cal. 4th 926,
989-990; Simmons v. United States (1968) 390 U.S. 377, 384 [even if a witness has been
subjected to a suggestive pretrial identification procedure, “eyewitness identification at
trial . . . will be set aside on that ground only if the [pretrial] identification procedure was
so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification”].) In addition, the United States Supreme Court has clarified that the
federal Constitution's due process clause is not implicated when the circumstances
asserted as creating an improperly suggestive identification procedure were not arranged
by law enforcement officers. (Perry v. New Hampshire (2012) 565 U.S.___, ___, 132
S. Ct. 716, 721 [the application of the due process clause “turn[s] on the presence of state
action and aim[s] to deter police from rigging identification procedures”].)
Here, appellant argues that the field show-up was suggestive because his hands
were cuffed, he was shown near the red car, a spotlight illuminated him, he wore different
clothes than those described as worn by the perpetrator, and that the officers placed a
black jacket on him to assist in the identification. Appellant also complains that the
officers made improper suggestive comments to the witnesses prior to the show-up, and
that the identifications were cross-racial (that is, appellant was a different race than the
witnesses).
Appellant has not demonstrated that the show-up was impermissibly suggestive.
First there is no evidence to support appellant’s claim that officers told the witnesses
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before the show-up that they had caught the person who committed the robbery. All
three witnesses were given the admonition that the person detained for viewing may or
may not be the person who committed the crime. The admonition also apprised them that
they should not be influenced by the fact that the person detained may be handcuffed.
The witnesses signed the admonition cards. Both Itani and Melliza testified that the
officers who transported them to the show-up told them the person in custody may or
may not have committed the crime. In addition, other aspects of the show-up – including
that appellant was handcuffed – do not automatically render the show-up suggestive. (In
re Carlos M., supra, 220 Cal.App.3d at p. 386 [the mere presence of handcuffs on a
detained suspect is not so unduly suggestive as to taint the identification].) Moreover, the
car was parked 48 feet from appellant during the show-up in a parking lot of other parked
cars.8 The other features of the show-up—the fact that the police used spotlights, or that
appellant stood next to a patrol car surrounded by officers—are the trappings of police
activity that are inherent in nearly all field show-ups and are not necessarily suggestive or
unfair in view of the circumstances of this case. Indeed, the show-up here was necessary
in view of the public danger posed by the crime and the pursuit of the robber. The police
were in close pursuit of a dangerous suspect who had just robbed a store, pointed a gun at
the store cashier, and discharged a weapon out in the open. The situation called for quick
and decisive police action. Under the circumstances the police needed to ascertain
whether they had apprehended the right person as soon as possible, and if not, to
immediately continue the pursuit to minimize the risk presented by an armed and fleeing
robber.
United States v. Pickar (8th Cir. 2010) 616 F.3d 821 is instructive. In Pickar, the
court upheld the trial court’s decision to deny the defendant’s motion to suppress his field
show-up that occurred 45 minutes after a bank robbery when the defendant was
8 The presence of the red car would have no bearing on Cortez who did not see the
robber escaping in the car.
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handcuffed, standing in front of a marked police vehicle, with a police officer shining a
flashlight on the defendant’s face and the victim stood 20 to 30 feet away inside the bank
that was the subject of the defendant’s robbery. (Id. at p. 828.) The court stated such a
show-up was not unduly suggestive. The facts in this case are no more suggestive than
those in Pickar. In short, appellant has not carried his burden to prove the field show-up
was unduly suggestive.
In any event, even were we to conclude that the show-up was impermissibly
suggestive appellant has not convinced us that the identifications were unreliable
considering the totality of the circumstances. All three of the witnesses had a significant
and sustained opportunity to view appellant from different vantage points at the time of
the crime and as he was fleeing. Melliza had two opportunities to interact with appellant.
He showed appellant where the index cards were in the store. Melliza pursued appellant
from 15 feet to 40 feet behind for a number of blocks after appellant fled the scene.
Melliza also saw appellant when appellant turned to face Melliza and Itani to discharge
the weapon. Itani had similarly substantial opportunity to observe appellant. Itani
observed appellant walk past his taxi within five feet, as appellant carried the cash
register drawer. Itani watched as appellant stopped to pick up the money that had fallen
to the ground. Itani joined Melliza’s pursuit, and saw appellant fire the weapon. Itani
saw the red car and the woman who accompanied appellant in the car. Cortez also had
several opportunities to interact with appellant. He stood in her line at the cash register,
he asked for assistance and she showed him where to find flash cards. He returned to her
line, stood only a few away from Cortez when he pointed his weapon and demanded the
cash register drawer. Appellant’s encounters with all three of these witnesses spanned a
number of minutes giving the witnesses ample time to observe and notice appellant.
Indeed, the witnesses were attuned to appellant’s appearance and his conduct both
before and after the crime. All three of the witnesses focused on appellant’s appearance
and clothing. They all noted that he was clad in black attire and wore a black hip-length
jacket. Itani noticed appellant based on his unusual appearance and activity: walking
through the parking lot quickly, carrying a cash register drawer, leaving a trail of money
20
in his wake. Itani and Melliza followed close behind appellant as he fled which required
both witnesses to pay careful attention to appellant’s movements. These circumstances
required a high degree of attention of the witnesses.
As for the accuracy of the prior description, the witnesses described appellant’s
attire and all noted the black coat. Although when appellant was stopped he was wearing
different attire than described from the robbery, the hip-length black jacket found in the
red car matched the one described. In addition Itani described the red get-away car. Itani
and the other witnesses described the cash register drawer and the gun both of which
were observed by police and at least one other witness as they were thrown from the car
during the police pursuit. Bullet shell casings found at the scene of the robber’s escape
match the gun thrown from the car. Itani also identified the female occupant of the red
car as matching the person whom he saw within the red car as appellant made his escape.
The witnesses, especially Itani and Melliza expressed certainty as to their
respective identifications of appellant as the robber. They were able to positively
identify appellant as the perpetrator even before the officers put the black jacket on
appellant’s shoulders, and despite appellant’s changed attire. Itani was also certain in his
identification of the female suspect. Moreover, though it took a while for Cortez to
positively identify appellant as the robber during the field show-up, she confirmed the
identification after the officers placed a black jacket found in the red car on appellant.9
Finally, the show-up occurred within an hour after the robbery, allowing the
witnesses to observe the suspect while the memory of the events was still fresh in their
minds. Thus, based on the totality of the circumstances of this case, the single-person
9 At trial appellant presented testimony from his investigator raising questions about
Cortez’s credibility. That evidence, however, was not before the trial court at the time
appellant brought the motion to suppress. Appellant did not renew his motion to suppress
in light of the investigator’s testimony nor did appellant object to the admission of
Cortez’s testimony about the identification at trial.
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show-up did not violate appellant’s right to due process. Therefore, the witness
identification testimony was properly admitted at trial.
III. Appellant’s challenges to his sentences
Appellant claims that the court committed a number of sentencing errors. First he
claims that the court failed to recognize that it had discretion when it sentenced him to
consecutive rather than concurrent sentences under section 667, subdivision (c). In
addition, appellant argues that the court improperly imposed a five-year sentencing
enhancement under section 667, subdivision (a). Finally, appellant claims the court erred
when it imposed certain fees and fines. We address these contentions in turn.
A. The Imposition of Consecutive Sentences on Counts 1 and 4 Under
Section 667, Subdivision (c)
Appellant asserts the trial court committed sentencing error when it failed to
recognize it had discretion under section 667, subdivision (c) to impose concurrent rather
than consecutive sentences as to counts 1 and 4, and that the case must be remanded to
allow the court to exercise its discretion.
At the sentencing hearing, the trial court declined to strike any of appellant’s five
prior convictions under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 in
view of appellant’s prior life of crime and record. The court then proceeded to
sentencing, stating “I don’t have a whole lot of discretion here.” The court stated:
“Looking at the circumstances in aggravation here, I note that the crime involved great
bodily harm or threat of great bodily harm following and disclosing a high degree of
cruelty or callousness. I note that the victim was vulnerable. I note that the defendant
used a weapon. The manner in which the crime was carried out indicates some planning.
And the defendant’s prior convictions as an adult are numerous and of increasing
seriousness. The court has not identified any circumstances in mitigation, . . .”
The trial court then imposed the following sentence: “On count 1, the violation of
Penal Code section 211, the court imposes, as required under the Penal Code, 25 years to
life. [¶] On count 4, violation of Penal Code section 12021[, subdivision (a)], the court
imposes, again statutorily required, 25 years to life. [¶] Regarding the special allegation
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concerning the use of and discharge of the firearm, the court imposes 20 years
consecutive to life.” The abstract of judgment reflects that the sentences as to counts 1
and 4 are to run consecutively.
Section 667, subdivision (c)(6) (and section 1170.12, subdivision (a)(6)) provide:
“If there is a current conviction for more than one felony count not committed on the
same occasion, and not arising from the same set of operative facts, the court shall
sentence the defendant consecutively on each count pursuant to subdivision (e).” (People
v. Hendrix (1997) 16 Cal. 4th 508, 512.) “By implication, consecutive sentences are not
mandatory under subdivision (c)(6) if the multiple current felony convictions are
‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts.’” (Id.
at pp. 512-513.) In addition, section 667, subdivision (c)(7), provides: “If there is a
current conviction for more than one serious or violent felony as described in paragraph
(6), the court shall impose the sentence for each conviction consecutive to the sentence
for any other conviction for which the defendant may be consecutively sentenced in the
manner prescribed by law.” We concluded that section 667, subdivision (c)(7), “applies
when there is more than one current serious or violent felony,” and that the reference to
“paragraph (6)” in subdivision (c)(7) is to subdivision (c)(6). (People v. Hendrix, supra,
16 Cal.4th at p. 513.) “So construed, ‘more than one serious or violent felony as
described in paragraph (6)’ refers to multiple current convictions for serious or violent
felonies ‘not committed on the same occasion, and not arising from the same set of
operative facts.’ ([§ 667,] [s]ubd. (c)(6).) Thus, when a defendant is convicted of two or
more current serious or violent felonies ‘not committed on the same occasion, and not
arising from the same set of operative facts,’ not only must the court impose the
sentences for these serious or violent offenses consecutive to each other, it must also
impose these sentences ‘consecutive to the sentence for any other conviction for which
the defendant may be consecutively sentenced in the manner prescribed by law.’ By
implication, consecutive sentences are not mandated under subdivision (c)(7) if all of the
serious or violent current felony convictions are ‘committed on the same occasion’ or
‘aris[e] from the same set of operative facts.’” (Ibid., see § 667, subd. (c)(7).)
23
“[A]n abuse of discretion occurs where the trial court was not ‘aware of its
discretion’ . . . .” (People v. Carmony (2004) 33 Cal. 4th 367, 378.)
Here, as in Hendrix, the parties conceded that all of the current serious and violent
felony convictions were committed on the same occasion. Therefore, section 667,
subdivision (c) did not require that the trial court impose consecutive sentences. Rather,
the trial court retained discretion to impose either concurrent or consecutive sentences on
the convictions.
Appellant interpreted the trial court’s comments at the sentencing hearing to mean
that the court did not recognize that it had discretion to impose the sentences in counts 1
and 4 concurrently rather than consecutively. Appellant points to the court’s remarks “I
don’t have a whole lot of discretion here,” “as required under the Penal Code,” and
“again, statutorily required,” as evidence that it failed to understand it had discretion to
impose concurrent rather than consecutive sentences on counts 1 and 4. We do not agree.
The trial court’s statement that it did not have “a whole lot of discretion here” was
not specific. In context, it referred to the aggravating circumstances and the lack of any
mitigating factors. The trial court followed its statement with a description of the
circumstances in aggravation, while finding no circumstances in mitigation. Also when
viewed in context, the trial court’s statements “as required under the Penal Code,” and
“again, statutorily required” referred to its lack of discretion in imposing a term of 25
years to life as to each individual count rather than a lack of discretion in imposing
consecutive rather than concurrent sentences.
Accordingly, in our view, appellant has failed to demonstrate that the trial court
did not understand that it had discretion in imposing consecutive rather than concurrent
sentences. A trial court is presumed to be aware of and have followed the applicable law
in imposing sentence. (People v. Mosley (1997) 53 Cal. App. 4th 489, 496.) In order to
overcome this presumption, appellant must affirmatively demonstrate error. (People v.
Sanghera (2006) 139 Cal. App. 4th 1567, 1573.)
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B. The Section 667, subdivision (a) five-year enhancements
At sentencing, appellant admitted five prior felony convictions, four of which
qualified as serious felonies for purposes of section 667, subdivision (a) sentencing
enhancements. Appellant’s prior conviction in case No. F4901842 was dated August 11,
2006, for a violation of section 12021, subdivision (a). The conviction does not qualify
as a serious felony for the purposes of section 667, subdivision (a) because it is not listed
as a serious felony in section 1192.7, subdivision (c). However, as appellant points out
and the Attorney General concedes, the trial court imposed five-year enhancements under
section 667, subdivision (a)(1) based on all five of his prior felony convictions including,
the one from case No. F4901842. Accordingly, the judgment should be modified to
strike the five-year enhancement under section 667, subdivision (a) imposed for the
conviction in case No. F4901842.
C. The Imposition of Fines, Fees and Assessments
The abstract of judgment in this case reflects the imposition of a $280 restitution
fine and a $280 parole revocation fine. The trial court, however, at sentencing did not
orally impose a restitution fine under section 1202.4, subdivision (b) or a parole
revocation fine under section 1202.45. In addition, the prosecutor did not object to the
court’s failure to impose the fines.
Before this court, appellant argues that the restitution fine and the parole
revocation fine must be stricken from the judgment because they were not imposed by the
court at sentencing, and that the prosecutor’s failure to object constitutes a forfeiture of
the issue. The Attorney General agrees. When there is a discrepancy between the court’s
oral pronouncement and the minute order or abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal. 4th 181, 185-186.)
Accordingly the judgment must be modified to strike the $280 restitution fine and the
$280 parole revocation fine.
Respondent also argues that the judgment should be modified to include a court
security fee and criminal conviction assessment that the trial court failed to assess.
Section 1465.8, subdivision (a)(1), requires a $40 court security fee shall be imposed on
25
every conviction for a criminal offense. The fee is mandatory, and must be imposed for
each of the convicted offenses. (People v. Schoeb (2005) 132 Cal. App. 4th 861, 865.) In
this case, the trial court imposed only one $40 fee, notwithstanding appellant’s conviction
on two separate counts. As such, the judgment must be modified to reflect the imposition
of a total of $80 in court security fees.
Likewise only one criminal conviction assessment was imposed under
Government Code section 70373. Government Code section 70373, subdivision (a)(1),
provides that an “assessment shall be imposed in the amount of thirty dollars ($30) for
each misdemeanor or felony.” This fee is also mandatory. In this case, the trial court
only imposed one $30 fee, notwithstanding appellant’s conviction on two separate
counts. As such, the judgment must be modified to reflect the imposition of two such
assessments, for a total of $60 in criminal conviction assessments.
DISPOSITION
We conditionally reverse the judgment and remand this matter to permit the trial
court to conduct an in camera review of the police personnel records limited to the police
officers and evidence as described in this opinion. If the trial court’s in camera
inspection reveals no relevant information, the trial court must reinstate the judgment. If
the inspection reveals relevant information, the trial court must order disclosure, allow
appellant an opportunity to demonstrate prejudice, and order a new trial if there is a
reasonable probability the outcome would have been different had the information been
disclosed. If no prejudice is shown, the trial court is to reinstate the judgment of
conviction.
If the court reinstates the judgment, the court is directed: (1) to strike the five-year
enhancement under section 667, subdivision (a) imposed for the prior conviction in case
No. F4901842; (2) to strike the restitution fine and parole revocation fine; and (3) to
impose additional court security fees and criminal conviction assessments as described in
this opinion. Thereafter the superior court is directed to prepare an amended abstract of
26
judgment and forward a certified copy of same to the Department of Corrections and
Rehabilitation.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
27