P. v. Johnson

Filed 7/18/06 P. v. Johnson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted appellant Reginald Johnson of second degree robbery (Pen. Code, § 211, count one) and possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1), count two.) The jury found true an allegation that appellant personally used a firearm in the commission of the robbery (Pen. Code, § 12022.53, subd. (b)).

On April 12, 2005, the court sentenced appellant to the midterm of three years on count one, two years on count two to be served concurrently to the sentence on count one. Further, the court imposed a 10-year enhancement for the personal use of a firearm.

Appellant filed a timely notice of appeal.

On appeal, appellant raises two issues. First, he contends that the trial court's admission of his in-field identification violated his due process rights under the 14th Amendment. Second, his trial counsel was ineffective for failing to request CALJIC No. 2.92 relating to eyewitness testimony. We disagree with appellant and affirm the judgment.

Facts and Proceedings Below

At approximately 11:20 p.m. on February 5, 2004, Jan Michael Ong (Mr. Ong) returned home from work to his apartment on Lucretia Avenue in San Jose. Mr. Ong went to check his mailbox. The mailboxes are located in an area where the light is poor. As he was walking to his box, he saw three males on a path that headed towards the mailboxes. There were a few lights in this area, so it was "pretty bright." Mr. Ong described the three men on the path as African-American, mid to late 20's, wearing dark, hooded sweatshirts or dark clothing and dark pants.

As Mr. Ong was opening his mailbox, one of the men pointed a metallic gray handgun to his forehead and said, "Give me your money or I'll blow your fucking brains off." A second man stood to Mr. Ong's left. He had his hands in the pocket of his sweatshirt pointed towards Mr. Ong. Mr. Ong believed that he had a gun. The third man stood behind Mr. Ong and held a hard object to Mr. Ong's back. Mr. Ong believed that this was a gun too.

The man with the gun pointed at Mr. Ong's head, and the man to Mr. Ong's left, wore bandanas. The man with the gun pointed at Mr. Ong's head was not wearing his bandana covering his face like a "cowboy." Instead, it was loose so that Mr. Ong could see that the man had a light mustache. The bandana covered the corners of the man's mouth down to his chin, but his chin was not entirely covered. The man's hair was a little long, "like an afro." Neither of the men with bandanas had them covering their nose.

Mr. Ong handed the man with the gun his wallet. One of the other men said, "Make sure to take his cell phone." The man standing to Mr. Ong's left took Mr. Ong's cell phone. Mr. Ong was told to get down on the ground, count to 100, and not make any sudden moves. Mr. Ong was afraid, so he complied. The men ran away. From Mr. Ong's vantage point, he thought the men ran towards McLaughlin and Tully. Mr. Ong estimated that the encounter lasted two or three minutes.

Mr. Ong went to his apartment where he called 911. At trial, the jury heard the 911 call, which was admitted into evidence. During the call, Mr. Ong stated that "three black men" had robbed him at gunpoint. He described the men as approximately six-feet one inch tall and in their late 20's. Mr. Ong said they were wearing black hooded sweatshirts and that one of them was wearing a bandana across his mouth. Mr. Ong said they had three guns, one of which he described as "silver."

When the police arrived at Mr. Ong's apartment, Mr. Ong reported to them what had happened and described the men. Mr. Ong told Officer Dinh that the men were possibly African American. At trial, Mr. Ong conceded that he might have told Officer Dinh that he did not "get a clear look at the suspects involved."

In addition to his cell phone, the three men took Mr. Ong's Bank of America card, checks, credit cards, keys and approximately $35 in cash.[1]

Approximately an hour after the robbery, Officer Scott Johnson, who was on patrol at the time, received a dispatch to a "disturbance" in which four men were involved. The description of the four men matched Mr. Ong's description of the men who robbed him. Officer Johnson drove to the area where the "disturbance" was reported to have taken place to look for anyone matching the description given by dispatch. As he was driving northbound on Elodie Avenue, Officer Johnson saw a man standing behind a pick-up truck. The man was wearing a black hooded sweater, a bandana around his neck, and black jeans. He had a black leather glove on his left hand.

The man began walking toward a footbridge. Officer Johnson got out of his patrol car and called to the man. The man stepped back. Officer Johnson told him to stop where he was. The man took a couple of steps more away from the officer, but stopped moving when Officer Johnson's dog barked from inside the patrol car.

Officers Aaron Lambert and Garrie Thompson arrived to assist Officer Johnson. Officer Thompson searched the man that Officer Johnson had stopped and found credit cards belonging to Mr. Ong in his pocket. In addition to the credit cards, Officer Thompson found checks with Mr. Ong's name in the man's pocket. Meanwhile, Officer Lambert looked around the back area of the pick-up truck behind which the man had been standing. He found a handgun in the rear tool compartment on the side of the truck where the man had been standing. The compartment in which the gun was found was slightly open. The dew that covered the rest of the truck had been wiped off the handle to the compartment. The inside of the compartment and the gun were dry. At trial, Mr. Ong identified the handgun as the one used in the robbery. Officer Johnson identified appellant as the man he saw standing by the pick-up truck.

The police took Mr. Ong to two in-field show ups. The first show up took place at a 7-Eleven. Mr. Ong looked at the suspect from inside a police patrol car from about 50 feet away. Mr. Ong testified that the police told him, "we just want you to look at this person . . . [that] is not to say that this is the person that did the crime." Mr. Ong did not recognize the suspect as one of the men who had robbed him and told the police that it was not one of the three men.

At approximately 3:00 a.m., Mr. Ong was taken to an area five to 10 minutes away from the apartment complex. Again, the police told Mr. Ong that they just wanted him to look at the people they had detained and that they were not necessarily the men who had committed the crime. Immediately, Mr. Ong recognized one of the men. Mr. Ong testified that he was very sure of his identification. At trial, Mr. Ong identified this man as appellant. Initially, Mr. Ong testified that he told the police that appellant was the man who had held the gun to his head. Later, he explained that he told the police appellant was one of the men, but was not asked and did not say what his role had been in the robbery. Instead, he was asked only if either of the people were "involved." However, when he saw appellant at the show up he knew he was the person holding the gun.

Mr. Ong viewed a second suspect at the in-field show up. He told the police that he was not sure if the second suspect was the person with the gun. He explained at trial, however, that he was confused regarding the questions the police were asking him. He was certain that appellant was the man that held the gun to his head, but believed that all three men had guns during the robbery.

Mr. Ong testified that on the day of the preliminary hearing, appellant sat down next to him in the basement courtroom where the preliminary hearing was to be held. Mr. Ong immediately recognized him as the man who held a gun to his head during the robbery and was surprised when he sat next to him.

The parties stipulated that appellant had been convicted of a felony on October 31, 2001.

Discussion

In Field Identification of Appellant

Appellant argues that the trial court's admission of his in-field identification violated his due process rights under the 14th Amendment.

Trial counsel moved in limine to suppress the identification of appellant made by Mr. Ong at the in-field show up. Accordingly, defense counsel requested a 402 hearing on the propriety of the in-field show up. Counsel argued that Mr. Ong should testify about the circumstances under which he was "pointed to [appellant] at the show-up, and also at the preliminary hearing."

The court decided to hold a 402 hearing to determine whether an impermissibly suggestive procedure had been used during the in-field identification of appellant. The court ruled, however, that Mr. Ong could not testify. Essentially, the court reasoned that it was an objective test, not a subjective test that the court had to apply. Specifically, the court stated that the procedure is "impermissibly suggestive because of the procedure followed, not because of what Mr. Ong subjectively perceived as a result of whatever the officer did or didn't do . . . ." The court concluded that appellant could challenge the procedure, but that it would not allow Mr. Ong to be there.

At the 402 hearing, Officer Dinh testified that Mr. Ong gave him a description of the men who had robbed him at approximately 11:20 p.m. the night of the incident. Shortly, thereafter he took Mr. Ong in his patrol car to a gas station mini mart to view a suspect who had been detained. Officer Dinh testified that he told Mr. Ong, "that the subject may or may not be the subject in question, that field ID needed to be completed." Mr. Ong did not recognize the suspect as one of the men who had robbed him.

About an hour later, Officer Dinh took Mr. Ong to view two additional suspects who had been detained. Mr. Ong again viewed the suspects from the car, which was about 50 feet away from the suspects. Again, Officer Dinh told Mr. Ong that the subjects stopped may or may not have been involved in the crime. When Mr. Ong saw appellant he stated, "That's the guy." Mr. Ong looked at the other suspect and stated that he was not sure about him. He thought that the suspect matched one of the men who robbed him, including his size and physical description, but he was not sure about the sweatshirt color. Officer Dinh did not know whether appellant had been asked by other officers to change his clothes before the identification.

The trial court ruled that the in-field identification was not unduly suggestive, "based upon the present state of the evidence." The court noted that it did not "find anything that the officer did that would unduly suggest identification of [appellant] or any of the individuals. So the motion is denied."

Appellant argues that the testimony of Officer Dinh alone was not enough to assess whether the in-field show up was improper. Appellant asserts that in deciding whether an in-field identification is unduly suggestive the following factors must be considered: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the prior description of the criminal; (5) the level of certainty demonstrated by the witness at confrontation; and (6) the length of time between the crime and the confrontation. Appellant relies on U.S. v. Jones (9th Cir. 1996) 84 F.3d 1206 as the basis for this assertion.

"An identification may be so unreliable that it violates a defendant's right to due process under the Fourteenth Amendment. [Citations.]" (People v. Nguyen (1994) 23 Cal.App.4th 32, 37.) "The reason for excluding identification evidence based on an unfairly conducted showup is that such evidence is unreliable as a matter of law and may result in the conviction of innocent persons. [Citations.]" (People v. Bisogni (1971) 4 Cal.3d 582, 586.)

"[A]lthough ' "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned" ' [citations], sometimes exigent circumstances make such procedures necessary. . . . 'Prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty is a valid purpose for conducting a one person showup . . . .' [Citations.]" (People v. Nguyen, supra, 23 Cal.App.4th at pp. 38-39.)

"The United States Supreme Court has held that a violation of due process occurs if a pretrial identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " (People v. Blair (1979) 25 Cal.3d 640, 659, quoting Simmons v. United States (1968) 390 U.S. 377, 384.) " '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's degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation . . . . 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.] In other words, '[i]if we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' " (People v. Ochoa (1998) 19 Cal.4th 353, 412.)

Thus, in determining whether "the identification violates due process requires consideration of the following factors. First, the court must determine whether the pretrial identification procedure was unduly suggestive and unnecessary. [Citations.] Assuming the procedure is unduly suggestive and unnecessary, the court must next decide whether the in-court identification was nevertheless reliable under the totality of the circumstances. . . ." (People v. Nguyen, supra, 23 Cal.App.4th at pp. 37-38.)

As we have explained, "[w]hether an identification procedure is suggestive depends upon the procedure used as well as the circumstances in which the identification takes place." (People v. Nguyen, supra, 23 Cal.App.4th at p. 38.) " 'It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. [Citations.]' [Citations.] Factual determinations by the trial court will be upheld on appeal if supported by substantial evidence. [Citations.] The defendant has the initial burden of establishing that the pretrial identification was suggestive. [Citation.]" (Ibid., fn. omitted.)

As noted, " '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 412.) Appellant appears to argue that in determining the first step in this inquiry, the trial court should have considered the factors relating to whether the identification was nevertheless reliable. In so doing, the trial court should have allowed trial counsel to question Mr. Ong.

People v. Caruso (1968) 68 Cal.2d 183, expresses the governing law with respect to the matter of due process where a pretrial identification is involved. Before a defendant may invoke an exclusionary concept, he must demonstrate that the pretrial identification resulted in such unfairness that it infringed his right to due process of law. (Id. at p. 184.) Thus, generally, the burden of proof on a motion to suppress evidence of a pretrial identification is on the accused. (People v. Stearns (1971) 14 Cal.App.3d 178, 182-183.) Accordingly, at the 402 hearing appellant bore the burden of demonstrating the unfairness of the pretrial identification. (See Simmons v. United States, supra, 390 U.S. 377, 384; People v. Sanders (1990) 51 Cal.3d 471, 508.)

By not allowing Mr. Ong to testify, the trial court hindered appellant in his attempt to carry that burden. While we find the trial court's decision troubling, we are not convinced that this was a due process violation. However, even if we were to decide that this was a due process violation, we would apply the Chapman standard of prejudice. Having examined the entire record, we conclude that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)

During the preliminary hearing, the following exchange took place between Mr. Ong and the prosecutor.

"[Prosecutor] Okay. Now, before you were taken out to look at anyone, the first lineup or the second lineup, were you told by any officer anything about not assuming that they had the right parties, they just wanted you to look at someone; something like that?

"[Mr. Ong] Yes."

"[Prosecutor] Both times they told you?

"[Mr. Ong] Both occasions, one o'clock and three o'clock."

Similarly, during direct examination of Mr. Ong concerning the in-field show ups, the following exchange took place.

"[Prosecutor] And before they showed you the person, did the officer say anything to you?

"[Mr. Ong] They said that we just want you to look at this person –"

Defense counsel objected on hearsay grounds. The court overruled the objection and told the jury that the "statement is not being offered for the truth of it . . . ." The prosecutor continued her line of questioning as follows.

"[Prosecutor] What did the the officer say to you?

"[Mr. Ong] 'This -- that's --this is only to -- this is not to say that this is the person that did the crime.'

"[Prosecutor] Okay. So did the officer say, 'We think this is the person' or anything like that.

"[Mr. Ong] No, ma'am."

Later, the prosecutor asked questions specifically about the second show up. "[Prosecutor] Before looking at the person, did they give you the same statement they had given you before the last time they showed you someone?" Mr. Ong answered "Yes, ma'am."

At both the preliminary hearing and during trial, defense counsel was not prevented from cross-examining Mr. Ong about the show up procedure.

Given the foregoing, we are confident that any error in denying defense counsel's request to call Mr. Ong as a witness at the 402 hearing was harmless beyond a reasonable doubt.

Ineffective Assistance of Counsel

Appellant contends that his trial counsel was ineffective in failing to request CALJIC No. 2.92 relating to eyewitnesses testimony.[2] Appellant asserts that the only issue in this case was the identity of the man with the gun. Since he was foreclosed from pursuing the propriety of his in-field identification, the focus of the majority of defense counsel's closing argument to the jury was the credibility of Mr. Ong's eyewitness testimony. Accordingly, it was critical to his case that the jury be fully instructed with regard to eyewitness testimony.

Appellant has the burden of proving a claim of ineffective assistance of counsel. To carry this burden, he must demonstrate two elements, deficient performance and resulting prejudice. (People v. Kelly (1992) 1 Cal.4th 495, 519-520.)

"The first prong, deficient performance, is established if the record demonstrates that counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice." (In re Alvernaz (1992) 2 Cal.4th 924, 937.) In assessing counsel's performance, we must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 689.) If trial counsel's omission stemmed from an informed tactical choice that a reasonably competent attorney might make, we must affirm the conviction. (People v. Lucas (1995) 12 Cal.4th 415, 437.) We must be "highly deferential" to the tactical decisions made by counsel. (Strickland v. Washington, supra, 466 U.S. at p. 689.) Thus, " '[i]n order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.)

The Attorney General argues that the record does not disclose the lack of a rational tactical purpose in defense counsel's failure to request CALJIC No. 2.92. The Attorney General points out that rather than raise a reasonable doubt, the jury could have used several of the factors listed in CALJIC No. 2.92 to bolster the accuracy of Mr. Ong's identification of appellant.

Looking at the factors in CALJIC No. 2.92, we agree with the Attorney General.

Mr. Ong testified that appellant held a handgun to his forehead during the robbery for two to three minutes, thereby demonstrating that he had a good opportunity to observe appellant. In addition, Mr. Ong testified that he was certain of his identification, another positive factor that the jury could have taken into consideration. Moreover, Mr. Ong identified appellant just three and one half hours after the robbery, a third positive factor the jury could have taken into consideration.

Furthermore, Mr. Ong's description of his assailants that he gave to the 911 dispatcher included the fact that the assailants wore black hooded sweatshirts and one wore a bandana. Appellant was found wearing a black hooded sweatshirt with a bandana around his neck. This was a fourth positive factor the jury could have taken into consideration.

While we find some of the factors listed in CALJIC No. 2.92 do not assist either side, we find only three factors that a jury could have taken into consideration that might have helped appellant. Specifically, the cross-racial nature of the identification, the stress that Mr. Ong was under when he observed appellant and the lack of prior contacts with appellant were all factors that favored appellant. Given that there were more factors that favored the prosecution, defense counsel may have made a rational tactical choice not to request CALJIC No. 2.92. Rather, defense counsel may have made the decision, and the record would support this conclusion, to undercut Mr. Ong's identification of appellant as the man with the gun, by cross-examination and argument.[3]

Since the record does not affirmatively disclose the lack of a rational tactical choice for defense counsel's failure to request CALJIC No. 2.92, we must reject appellant's claim that his counsel's representation was deficient.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_______________________________________

PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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[1] Mr. Ong told the 911 dispatcher that he was worried about losing his green card and social security card.

[2] CALJIC No. 2.92 provides: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:

"[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]

"[The stress, if any, to which the witness was subjected at the time of the observation;]

"[The witness' ability, following the observation, to provide a description of the perpetrator of the act;]

"[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]

"[The cross-racial [or ethnic] nature of the identification;]

"[The witness' capacity to make an identification;]

"[Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;]

"[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

"[The period of time between the alleged criminal act and the witness' identification;]

"[Whether the witness had prior contacts with the alleged perpetrator;]

"[The extent to which the witness is either certain or uncertain of the identification;]

"[Whether the witness' identification is in fact the product of [his] [her] own recollection;]

"[_____________________________________________________________________________ ____________________;] and

"Any other evidence relating to the witness' ability to make an identification."

[3] Defense counsel cross-examined Mr. Ong extensively on his identification of appellant and argued during the closing summation that the jury should consider Mr. Ong's ability to see and perceive appellant at the time he was by the mailboxes. Furthermore, defense counsel argued that there was no evidence that the gun found in the white truck was the gun used by one of the assailants.