P. v. Moe

Filed 5/27/10 P. v. Moe CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Andrew Todd Moe appeals a judgment entered following a jury trial during which he was convicted of second degree robbery (Pen. Code, 211/212.5, subd. (c)).[1]On appeal, defendant asserts he was denied effective assistance of counsel because his attorney failed to file a motion to suppress evidence of the pretrial showup identification.

Statement of the Facts and Case

In August 2008, James McDonald was at the light rail station at the intersection of Snell and Blossom Hill in San Jose. McDonald was walking down the stairs to the station to wait for the northbound train, when he saw defendant standing against the railing. McDonald walked past defendant and pulled out his cell phone to text his girlfriend. Approximately three minutes later, McDonald was punched in the chest, and fell to his knees, dropping his cell phone. After he fell, McDonald looked to the right and saw defendant. McDonald looked at defendants face, and saw defendant reach for his phone. McDonald did not see defendant actually take the phone, but did see that the phone was no longer on the ground, and defendant began running toward the stairs.

McDonald chased defendant up the stairs, and called 911 on his work cell phone that he had with him. McDonald was put on hold during the 911 call, and continued to chase defendant as he ran out of the station and onto Snell Avenue. McDonald chased defendant for a period of minutes, along several city blocks, during which the 911 operator came on the line. McDonald began to describe defendants appearance to the operator, while at the same time continuing to pursue defendant.

During the 911 call, McDonald described defendant as a white male, between 19 and 22 years old, about six feet one or two inches tall, weighing between 150 and 160 pounds, with light brown hair, and wearing a black shirt and red and black shorts.

McDonald did not lose sight of defendant until defendant turned left from Snell Avenue onto Conlin Court, which is a dead end street. McDonald estimated that he followed defendant for between five and 10 minutes between the train station and Conlin Court. Police arrived at the scene while McDonald was standing on the corner of Conlin Court.

Police officers told McDonald to go around the corner to Shawnee Avenue, where there was a person detained who was face down on the sidewalk. McDonald stopped about 15 feet from the detained person, whom police officers had stand and face McDonald with his eyes closed. McDonald did not testify, and was not asked whether he identified the detained person as the robber at trial.

Police Office McAlavey responded to the scene after the 911 call. McAlavey drove on Shawnee Avenue towards Snell, when he saw a suspect that matched McDonalds description. The suspect was wearing a black shirt and red and black shorts, and was very sweaty. McAlavey detained the suspect, handcuffed him and laid him on the ground in a prone position. McAlavey identified defendant as the suspect in court. McAlavey searched defendant, and the area, and did not find McDonalds cell phone that was stolen. McAlavey did not testify, and was not asked if McDonald identified the suspect as the robber at trial.

Defendant was charged with second degree robbery ( 211, 212.5, subd. (c). Following a jury trial, defendant was convicted as charged. Defendant filed a timely notice of appeal.

Discussion

Defendant contends his attorney was ineffective for failing to pursue a motion to suppress McDonalds in-court identification based on a suggestive pretrial identification. He asserts the in-court identification was tainted, because the pretrial showup identification was only a single person. Defendant asserts that because the pretrial identification was suggestive, the in-court identifications should have been suppressed.

A defendant has the right to effective assistance of counsel pursuant to the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) Defendant has the burden of proving a claim of inadequate trial assistance. To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. (People v. Kelly (1992) 1 Cal.4th 495, 519-520.)

Furthermore, When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation], the contention must be rejected. (People v. Kelly, supra, 1 Cal.4th at p. 520.)

An identification may be so unreliable that it violates a defendants right to due process under the Fourteenth Amendment. (People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d. 787, 820.) A pretrial identification procedure that is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violates due process. (Simmons v. United States (1968) 390 U.S. 377, 384.) Defendant bears the initial burden of demonstrating that the identification procedure was unduly suggestive and that the identification, itself, cannot be considered reliable under the totality of the circumstances. (People v. Ochoa (1998) 19 Cal.4th 353, 412.)

An identification procedure is unfair if it suggests, in advance of identification by a witness, the identity of the person suspected by the police. (People v. Ochoa, supra, 19 Cal.4th at p. 413.) Whether the identification procedure is suggestive depends upon the procedure used as well as the circumstances in which the identification takes place. (People v. Nguyen (1994) 23 Cal.App.4th 32, 38.)

In assessing the suggestiveness of an identification procedure, it is well established that [t]he single person showup is not inherently unfair. (People v. Ochoa, supra, 19 Cal.4th at p. 413.) It has been noted that sometimes exigent circumstances make such procedures necessary and the 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 showup. (People v. Nguyen, supra, 23 Cal.App.4th at p. 38-39.)

The fact that defendant was the only suspect who matched the description given to the police did not render the identification procedure unfair. Officer McAlavey apprehended defendant within a minute of arriving at the scene following McDonalds 911 call, and found defendant less than a block away from where McDonald last saw him walking. In addition, defendant matched McDonalds description to the 911 operator as a white male, between the ages of 19 and 22, about six feet two inches tall, weighing between 150 and 160 pounds, and wearing a black shirt and red and black shorts. When McDonald made the identification, he was standing only 15 feet away from defendant, and identified him in daylight conditions.

Moreover, exigent circumstances supported the use of the showup procedure here. [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 exigent circumstances here distinguish this case from People v. Bisogni (1971) 4 Cal.3d 582, upon which defendant relies. In Bisogni, two men and one woman committed a robbery at a restaurant. Several months later, three witnesses to the robbery were brought in to the police station so that they could try to identify suspects. They viewed a lineup and identified one of the men (the defendant in the case). Afterwards, they were asked to look through a hole in a door or wall at a room containing one woman. One of the witnesses identified the woman as the one who had participated in the robbery. (Id. at p. 586.)

On appeal, the defendant argued that the showup of the woman was unduly suggestive. The court agreed: Under these circumstances, the viewing of Mrs. Gordon alone in the room was highly suggestive that she was probably the female robber. Moreover, there was no emergency present requiring a single person showup [citation], and as the showup occurred many months after the robbery, the identifications could not have been based on recent memories of the perpetrators of the crime. . . . [T]he procedure followed in effect suggested to the witnesses that Mrs. Gordon was one of the coparticipants. (People v. Bisogni, supra, 4 Cal.3d at pp. 586-587.)

Here, the showup was conducted at the location only a few blocks from where the robbery occurred. The details of the incident were still fresh in McDonalds mind. A show-up would assist the police in determining whether defendant was the robber, or whether he should be released. One of the justifications for a showup is the need to exclude from consideration innocent persons so that the police may continue the search for the suspect while it is reasonably likely he is still in the area. [Citation.] (People v. Johnson (1989) 210 Cal.App.3d 316, 323, citing Stovall v. Denno (1967) 388 U.S. 293, 302.)

In light of our conclusion that the procedure was not impermissibly suggestive, we need not consider whether the identification was nevertheless reliable. (People v. Ochoa, supra, 19 Cal.4th at pp. 412-413.) Having concluded that the showup was not impermissibly suggestive, it follows that the showup did not taint McDonalds subsequent identification of defendant at trial, which identification also was properly admitted.

We do not believe defendant has demonstrated that his attorneys failure to bring a motion challenging the showup identification of him amounted to ineffective assistance of counsel. We have reviewed the pretrial identification procedures in this case, and we do not find that the procedures were unduly suggestive. Hence, a motion challenging the in-court identifications of defendant based on the suggestiveness of the pretrial procedures was neither necessary nor likely to have been successful.

Based on this record, there is no merit to defendants claim that his counsel was ineffective in failing to bring a motion to suppress the identification evidence.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further statutory references are to the Penal Code.