P. v. Johnson
Filed 6/12/13 P. v. Johnson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICHARD DWAIN JOHNSON,
Defendant and
Appellant.
G046328
(Super. Ct.
No. 09HF1085)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Scott A. Steiner, Judge. Affirmed.
Eric Cioffi, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, and A. Natasha Cortina, Deputy Attorney
General, for Plaintiff and Respondent.
*
* *
A jury convicted
defendant Richard Dwain Johnson of a single count of
(c).) He was sentenced to a prison term
of three years.
On appeal, defendant
contends the court prejudicially erred by admitting testimony of an out-of-court
identification by the robbery victim.
The victim picked defendant out of a six-person photographic lineup, but
said she could only “estimate†defendant was the robber, as the victim never
got a clear look at defendant’s face.
Finding neither error nor prejudice, we affirm.
FACTS
On the afternoon of March 6, 2009, a man walked into a
Bank of America in Newport Beach, California,
wearing a straw hat. He approached a
teller, passed a note to the teller written on a folded paper plate and said,
“Read it.†The note read, “Give me a 50,
twenties, and tens†“if you don’t want to hurt anyone.†The teller then placed approximately $1,800
in a black pouch the robber had furnished.
The man took the bag and quickly left the bank. The teller never got a good look at the
robber’s face because the robber kept his head tilted down so his straw hat
blocked most of his face. She did,
however, see from approximately the nose to the cheek bone on one side of the
robber’s face.
As the robber was
walking out, the teller informed another bank employee about the robbery. The employee saw the robber leaving the
building wearing the straw hat. The
employee then went to lock the door the robber had used, and as she did so she
saw through the glass door what she recognized as the robber’s straw hat on the
ground in the parking lot. The employee
subsequently went outside and collected the straw hat, taking care not to touch
the brim or the inside of the hat.
The police arrived to
investigate. The police collected the
straw hat, which was DNA tested. There
were two contributors of DNA to the hat, a major contributor and a minor
contributor. The major contributor was
the defendant.
Approximately two months
after the robbery, the police showed the teller a six-person photographic
lineup. The teller stated, “I don’t
recognize anyone here because I don’t [sic]
see any face.†She then said the robber
“might be number 5†and that number five “looked similar†to the robber, but
that she was only giving an “estimate.â€
She made this estimate based on the height, build, skin color, and lack
of facial hair of the robber and the man depicted in the photograph. She used the word “similar†because she could
not be certain number five was the robber.
At trial, however, she acknowledged during cross-examination she “had no
idea if number 5 [was] the man that was standing in front of [her] at [her]
counter.†Number five was a picture of
the defendant.
After the robbery the
defendant told his brother he robbed a Bank of America. The defendant would joke about it because he
fled the scene on a bike and thus was the “bicycle bandit.†Defendant said these things in a bragging
manner. Defendant made such comments on
four or five different occasions.
Defendant’s brother did not tell the police because defendant threatened
him on several occasions.
Similarly, the defendant
told a friend he had robbed a Bank of America in Newport
Beach and had worn a straw hat and had passed a note
on a paper plate to the teller.
Pretrial, defendant moved
under Evidence Code section 402 for an order barring the introduction of the
teller’s testimony concerning her identification of defendant in the six-person
photographic lineup. Defendant contended
the teller’s act of picking defendant’s picture combined with her comment that
defendant’s photograph “look[ed] similar to the person that committed the
robbery†did not constitute an “identification†under Evidence Code section
1238 (section 1238), and was otherwise inadmissible
hearsay.
The court denied the
motion: “The court had an opportunity to
do some more research and had an opportunity to read the Hatfield case that I mentioned earlier, [People v. Hatfield (1969)] 273 Cal.App.2d 745. [¶] I
also found two additional cases, which pretty definitively establish that even
a mere description — forget about an I.D. — that a mere description is
sufficient under [section] 1238, specifically [People v. Cooks (1983) 141 Cal.App.3d 224 and People v. Gould (1960) 54 Cal.2d 621]. So it seems clear that the description given
by†the teller is sufficient under section 1238. “If case law has subsequently interpreted a
prior identification to be demonstrated where the evidence as to that
identification is merely a description, then that would, to the court, seem to
suggest that whatever bar it is, wherever that bar is set on the issue of
identification of [section] 1238, it’s low.â€
The court also noted, citing People
v. Gonzales (1968) 68 Cal.2d 467, that the strength of an identification,
or lack thereof, is for the jury to weigh.
The court encouraged defense
counsel to raise an objection if any other foundational requirements of
section 1238 were not met: “Again, this
assumes that there is compliance with the other foundational elements of
[section] 1238. I’m assuming that those
elements would be established. Obviously
the defense could renew an objection if there was a separate basis for
contesting the admissibility of a prior identification.†Defense counsel raised no additional
objections at trial.
At trial the principal
disputed issue was identity. During
closing argument, the prosecutor discounted the importance of the teller’s
“estimate†that defendant’s photograph in the lineup looked “similar†to the
robber, stating, “Is that enough by itself?
Would we be here? No, we
wouldn’t.†The prosecutor focused
principally on the DNA evidence and defendant’s admissions. Of the 13-page transcript of the prosecutor’s
closing argument, only one page is devoted to the six-person photographic
lineup evidence. Defense counsel argued
the photographic lineup evidence was of no value at all: “The fact that [the teller] said that number
5 looked similar is of no evidence in this case. And in fact, it’s a little disturbing that
that’s the kind of square peg that’s tried to put into the round hole because
we don’t have a police officer here to explain to you why he would do a
six-pack with five guys with hair on their face and one guy without. That’s what we call a classic suggestive
photo I.D. lineup, and that is a dangerous piece of evidence to rely on. [¶]
But you don’t need to rely on that evidence because [the teller] told
you don’t rely on that evidence because ‘I don’t know at all if that’s the man
that robbed me.’ Period. The end.â€
During deliberations,
the jury asked two questions. Of
relevance here, they asked, “On what date was the ‘6-pack’ shown to the bank
teller�
DISCUSSION
Defendant claims a
single error on appeal: that the court
erred by admitting the teller’s testimony regarding the six-person photographic
lineup as an “identification†under section 1238, the hearsay exception for
prior identifications. We review the
court’s ruling for abuse of discretion.
(People v. Waidla (2000) 22
Cal.4th 690, 725 [“an appellate court applies the abuse of discretion standard
of review to any ruling by a trial court on the admissibility of evidence,
including one that turns on the hearsay nature of the evidence in questionâ€].) We hold the trial court did not abuse its
discretion, and, even if it had, the error would not have been prejudicial.
Weakness in the Identification Went to the Weight, not the Admissibility of the
Testimony
Section 1238
provides: “Evidence of a statement
previously made by a witness is not made inadmissible by the hearsay rule if
the statement would have been admissible if made by him while testifying and: [¶]
(a) The statement is an identification of a party or another as a person
who participated in a crime or other occurrence; [¶]
(b) The statement was made at a time when the crime or other occurrence
was fresh in the witness’ memory; and
[¶] (c) The evidence of the
statement is offered after the witness testifies that he made the
identification and that it was a true reflection of his opinion at that
time.â€
The only portion of
section 1238 at issue here is whether the teller’s statements, concerning the
defendant’s photograph in the lineup, were an “identification†under
subdivision (a). The trial court made
clear that its ruling was so restricted and invited defense counsel to object
if any of the remaining foundational elements that were not met. Defense counsel did not object. Accordingly, the sole issue before us is
whether the teller’s testimony was an “identification†under subdivision (a).
We begin with the
principle that even weak, hesitant identifications are admissible — the
weakness goes to the weight, not the admissibility of the evidence. (People
v. Jones (1963) 221 Cal.App.2d 408, 409 [“The strength or weakness of
identification is a matter solely within the province of the jury. [Citations.]
The jury’s determination must be upheld unless the evidence of
identification is inherently improbable or incredible as a matter of
lawâ€].) People v. Gonzales, supra,
68 Cal.2d 467 is instructive. There, an
informer phoned defendant requesting to purchase heroin. The defendant left a bar to go complete the
sale. An officer was at the bar and saw
a man he believed to be the defendant leave the bar shortly after the phone
call, but he did not get a good look at the man’s face. At trial the officer opined that the man who
left the bar was defendant. (
testimony was error. Our Supreme Court
disagreed: The officer “testified that
in his opinion the man he saw leave the bar was defendant, that clothing and
specified characteristics of the man appeared to be the same as those of
defendant, but that [the officer] did not see the facial characteristics of the
man and could not positively identify defendant as the man. Lack of
positiveness as to the man’s identity went to the weight and not to the
competency of the evidence.†(
The teller’s testimony
here was similar. Despite not getting a
good look at the robber’s face, she made an “estimate†based on the skin color,
height, lack of facial hair, and build of the robber that defendant was the robber. She was not positive defendant was the
robber. She was extremely hesitant. She explained she was careful to use the word
“estimate†because she was not at all certain defendant was the robber. Nonetheless, she did not pick defendant out
at random — she did so based on particular characteristics. Whether the characteristics she relied on
resulted in a strong identification, and the teller’s confidence in her
“estimate,†were for the jury to consider.
They did not render the testimony inadmissible. Thus the court did not err.
In reaching this
conclusion we are mindful of the inherent safeguards present in testimony
admitted pursuant to section 1238. In
by People v. Cuevas (1995) 12 Cal.4th
252, 257, our high court explained that out-of-court identifications are
independently admissible “because the earlier identification has greater
probative value than an identification made in the courtroom after the
suggestions of others and the circumstances of the trial may have intervened to
create a fancied recognition in the witness’ mind.†(Gould,
at p. 626.) Moreover, “
evidence is not present since the witness is available at the trial for
cross-examination.†(
The
safeguard of cross-examination was
put to good use here. Defense counsel
capably cross-examined the teller, eliciting many weaknesses in the teller’s “estimateâ€
that defendant was the robber. This
effective cross-examination put the evidence in perspective for the jury. As a result of such safeguards, lack of
positiveness in the identification — even a very low level of confidence such
as the “estimate†the teller gave here — does not render the testimony
inadmissible.
We disagree with
defendant that a statement in Gould,
contrary result. In Gould the victim who identified the defendant in a photographic
lineup also testified in court. “At the
trial [the victim] pointed out [defendant] as having ‘some features but not all
of the features’ of the man she saw inside her apartment, and added that he
seemed thinner than the burglar. She stated that she was unable to point out
anyone in the courtroom as the man she saw [at the scene of the crime].†(Id. at
p. 625.) The Gould court stated, “Although her testimony did not amount to an
identification, the evidence of her extrajudicial identification was
nevertheless admissible.†(
identification and concludes the out-of-court
statement here was likewise not an identification: “It follows that . . . an extrajudicial statement
that a picture ‘looks similar to the perpetrator’ would not constitute an
identification, just like the same in-court testimony in Gould.â€
Defendant’s argument is
clever, but it overlooks an important distinction between this case and
unlike Gould, here the teller
hesitantly. Defendant’s argument also
attributes to Gould a proposition the
Gould court never considered. (See Palmer
v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278 [“‘“Language used in
any opinion is of course to be understood in the light of the facts and the
issue then before the court, and an opinion is not authority for a proposition
not therein consideredâ€â€™â€].)
scope of an “identification†for purposes of the hearsay exception. Indeed, beyond the one passing comment quoted
above, Gould did not analyze the
definition of “identification†at all.
In context, we interpret Gould as
saying the in-court testimony of the victim there did not amount to a positive
identification, and nothing more.
Admission
of the Teller’s Testimony Did Not Prejudice Defendant
Even if we were to find
admission of the teller’s testimony was error, we would nonetheless affirm for
lack of prejudice. (See
836 [error is reversible only “when the court, ‘after an examination of the
entire cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing party would
have been reached in the absence of the errorâ€].)
The teller’s testimony
regarding the identification was weak to begin with, and it was further
weakened by effective cross-examination.
(See People v. Ramirez (2006)
143 Cal.App.4th 1512, 1526 [hearsay statements were improperly admitted, but
there was no prejudice because the declarant testified at trial and “[t]hus the
jury did not have to rely solely on secondhand statements she made to third
parties. Rather, it had the opportunity
to hear from [the declarant] directly and to judge her credibilityâ€].) Even the prosecutor acknowledged the evidence
was weak — both expressly, and tacitly by spending little time arguing about
the evidence. Given the inherent
weakness of the evidence and the modest role it played in the prosecution’s
case, we find it unlikely the absence of such evidence would have swayed the
jury.
Moreover, the remaining
evidence against the defendant was strong.
His DNA was found at the scene of the crime on the hat the robber
wore. He admitted to his brother and a
friend he committed the robbery, and he even threatened his brother to ensure
his brother would not tell the police.
Further, he fit the general description of the robber in terms of
height, build, and skin color.
Collectively this evidence was persuasive evidence of defendant’s guilt.
We acknowledge the jury
asked a question about the six-person photographic lineup identification. In some circumstances such questions are
suggestive that the evidence was important to the jury, which tends to favor a
showing of prejudice. But given the
weakness of the teller’s testimony combined with the strength of the remaining
evidence against defendant, we cannot find prejudice based solely on a single
jury question. In light of the totality
of the record, it is unlikely a result more favorable to the defendant would
have been reached in the absence of the alleged error.
DISPOSITION
The judgment is
affirmed.
IKOLA,
J.
WE CONCUR:
FYBEL, ACTING
P. J.
THOMPSON, J.
Defendant mentions
in passing in his brief that the teller was not shown the six-person
photographic lineup until two months after the crime and asserts the robbery
was not “fresh in the witness’ memory†under subdivision (b) of section
1238. Likewise in passing, defendant comments
that the teller did not “vouch†for the opinion under subdivision (c) of
section 1238. Defendant waived such
arguments by not objecting at trial. (
756 [“numerous decisions by this court have established the general rule that
trial counsel’s failure to object to claimed evidentiary error on the same
ground asserted on appeal results in a forfeiture of the issue on appealâ€].)
Evidence Code
section 1238 “codif[ied] exceptions to the hearsay rule similar to that which
was recognized in [Gould,
West’s Ann. Evid. Code (1995 ed.) foll. § 1238, p. 249.)
