P. v. Ocampo
Filed 9/12/12 P. v. Ocampo CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL OCAMPO,
Defendant and Appellant.
B235282
(Los Angeles
County
Super. Ct.
No. TA107586)
APPEAL from a judgment of the Superior Court of
County. Eleanor J.
Hunter, Judge. Affirmed as modified with
directions.
Donna L. Harris, 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, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorney Generals, for Plaintiff and
Respondent.
_____________________
INTRODUCTION
Appellant
Manuel Ocampo was charged with the murder
of Juan Corrales. Prior to trial, Ocampo
filed a motion to suppress evidence that the victim’s wife, Maria Campana, had
tentatively identified him as the perpetrator.
Ocampo argued that Campana’s identification was unreliable because
police had engaged in suggestive conduct when showing her a photographic
lineup. The court denied the motion.
At trial, Campana testified that
she was fifty percent certain that Ocampo was the man she saw on the night of
her husband’s death. In addition, Manuel
Arzate, who was initially charged as a codefendant, testified that he saw
Ocampo shoot the victim. The jury found
Ocampo guilty. The court sentenced
Ocampo to 50 years to life in prison and imposed several penalties and fees,
including a $20 DNA assessment under Government Code section 76104.7.
On appeal,
Ocampo argues that the trial court erred when it: (1) denied his motion to
suppress evidence related to Campana’s identification; and (2) assessed a $20
DNA fee. We modify the judgment to
strike the $20 DNA fee and affirm the conviction in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Preceding Trial
At approximately 11:00 p.m. on June 19, 2009, Maria Campana was at her apartment with her
daughter and heard the sound of “truck noise†and “squeaking wheels.†Campana went to the window and saw her
husband, Juan Corrales, trying to park his white pickup truck next to the
apartment building. Although it was dark
outside, Campana had a clear view of the truck and could see her husband
sitting in the driver seat.
Immediately after Corrales turned
off the engine, Campana saw three Hispanic males approach the driver side of
the vehicle. Campana heard the man
closest to Corrales say, in Spanish, “Fuck it. It’s over.†She then saw him extend his hand toward the
truck and heard what sounded like gunshots.
The three males ran away and Campana went to check on Corrales, who was
unconscious and bleeding. Corrales later
died from gunshot wounds.
On June 24, 2009, detectives from the Los Angeles County
Sheriffs Department interviewed Campana about the incident. During the recorded interview, Campana
described the male who had extended his arm toward her husband’s vehicle as being
“kind of white,†“skinny,†“bald†and having a “somewhat pointed†nose. When asked to clarify if “kind of whiteâ€
meant Hispanic, Campana stated that she thought he was “like Hispanic.†Campana also stated that the suspect was
“really young. Like seventeen, eighteen
years old.†When an officer asked
whether the suspect might have been between “eighteen and twenty,†Campana
stated “around there.â€
Campana could not recall any
details about the appearance of the other two men who approached Corrales, explaining
that “[t]he first one was the one that was most facing me. He’s the one that walked ahead.†Campana also said the suspects probably lived
nearby because she never heard a car pull up.
She believed the men were bothered by the fact that her husband had been
“driving fast†around the neighborhood.
After Campana described the
suspect, the officers asked her if she could identify him from photos. In response, Campana stated, “[w]ell maybe
but I’m not too too [sic] sure.†An officer then read Campana the following
admonishment: “you are going to look at a series of six photographs of
individuals of similar appearance. The
suspect involved in this crime may or may not be among these photographs. You’re under no obligation to make an
identification. This purpose [
to eliminate the innocent as well as to identify the person who is
guilty.†The officer also told Campana
that she should “try to keep in mind [that] lighting is different. People have shorter hair, longer hair, based
on the time when the photo was taken.â€
Campana confirmed that she understood the instructions and had no
questions.
After looking at the six
photographs, Campana stated that “[t]hey d[idn’t] look like [him],†but that
the person in picture number six – which was Ocampo – “ha[d] a certain
air.†Campana clarified that, of the six
men, Ocampo looked the most similar to the man who approached her husband’s
truck. Based on Campana’s responses, the
officers became concerned that she was afraid to make an identification and
told her the police would protect her.
Campana stated that she was not afraid because she had never done
“anything to anybody.â€
The officers then asked Campana to
estimate how certain she was that Ocampo was the perpetrator. Campana said she was only “about five
percent†certain and that she “honestly†did not believe it was him. The officers again informed Campana that they
would protect her if she was afraid “something may happen
. . . from the . . . gang members.†Campana said she was not sure Ocampo was the
right person because the perpetrator “didn’t have a beard [and] was
balder.†In response, an officer
reminded her that people can change their hairstyles and facial hair. Campana then said “Yes, he looks like him a
little.â€
The officers told Campana that
without her cooperation, “the people who killed your husband are going to
remain free.†Campana said it was “just
that [she did not] remember well,†to which the officers responded “if you
don’t remember, you don’t remember.â€
Campana looked at the pictures again and said “I think but I [am] not
sure.†She then agreed to sign a
statement at the bottom of the photographic lineup stating “out of the photos
#6 most closely resembles [the] person she saw.
She thinks he extended right arm toward husband.â€
After making the identification,
Campana asked the officers whether they had arrested anyone. The police said nobody was in custody and
that she and her neighbor were the only people who could identify the
perpetrators. Campana asked the police:
“Is he going to find out that I could have said that it was him? . . . Because
if it’s not and he thinks [] come later and grab my daughter [
The officers assured Campana that the police would be able to protect
her and then asked her again whether Ocampo was the individual who approached
her husband. She stated, “I think but
I’m not sure.â€
Campana then asked whether the
police were going to investigate the man pictured in photograph number six and
whether they were going to “tell him . . . that I talked.†The officers told her that Ocampo was going
to be arrested and that “they are not going to ask you for anything. . . . [Y]ou have time to think about everything and
to be sure. But the young man is not
going to know about you.†Campana added,
“I just can’t accuse anyone. If I’m not
sure how can I accuse someone? You did
it, and I’m . . . not sure.†An officer
then stated “the reasons the young man is in that series of photos is because
he’s the one that . . . they think it was him.â€
Court Proceedings
Information
and preliminary hearing
On February 23, 2010, the Los
Angeles County District Attorney filed an information charging Ocampo and a
codefendant, Manuel Arzate, with a single count of murder (See Pen. Code, §
187, subd. (a).
title="">[1]) The information included special allegations
asserting that Ocampo had discharged a firearm, causing great bodily injury and
death (§ 12022.53, subd. (d)), and that the offense was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
At the preliminary hearing, Campana
testified that the man who extended his arm toward her husband’s truck was
“white†and had a “long†and “pointy†nose.
Campana also confirmed that, on June 24th, 2009, she had signed a
statement on the photographic lineup indicating that Ocampo most closely
resembled the man she saw next to her husband’s truck. Campana then testified that the person in
photograph number six was sitting in the courtroom and pointed to Ocampo.
On cross-examination, Campana
confirmed that she had only told officers that Ocampo “most closely resembled
the suspect†and never said she was sure of her identification. Campana also stated that when the prosecutor
asked her whether the man in the photographic lineup was in the courtroom, she
identified Ocampo based on the picture and not on her recollection of the
events of June 19th. Campana then
clarified that Ocampo’s “face, [his] color, his nose looks like [the person who
approached her husband],†but admitted that she was not sure he was the
perpetrator.
>
2.
Ocampo’s
motion to suppress
Prior to
trial, Ocampo moved to suppress any evidence of “the photographic
6-pack line-up, the in-court identification made by Maria
Campana, any statements made regarding identification of the defendant by Maria
Campana and any future in-court identification by Maria Campana.†Ocampo argued that the officers had used
“impermissibly suggestive†procedures during the identification process. More specifically, Ocampo asserted that “the
[officers] pressured and threatened†Campana into making an identification and
told her that they believed Ocampo had killed her husband. According to Ocampo, this conduct “tainted†any
“in-court identification or further information gathered from Maria Campana . .
. and violated defendant[’]s due process of law.†At the hearing on the motion to suppress,
Ocampo’s counsel also argued that the photographic lineup was suggestive because
Ocampo was the only suspect that fit Campana’s description. Counsel also asserted that the officers had
tried to direct Campana to Ocampo’s picture by reminding her that people can
change their appearances and inducing her to say that the suspect was between
eighteen and twenty rather than seventeen or eighteen.
The court
denied the motion to suppress, explaining that it did not find the photographic
lineup to be “unduly suggestive.â€
According to the court, the lineup included several pictures of thin,
“young Hispanic individuals†who had “varying degrees of hair on their
head.†The court concluded that there
was nothing about Ocampo’s image that would “automatically . . . draw[]†a
witness’s attention or otherwise make him “stick[] out.â€
The court
also explained that, despite Ocampo’s allegation that police had pressured
Campana to make a definite identification, she had refused to do so: “In her signing of the identification, she
[only] says No. 6 . . . most closely resembles the person she saw. So there’s never a positive identification. So with all of that pressure . . . you are
arguing was applied to her from the police, you would think it to be a hundred
percent identification . . . . And I
think that she was tentative from the very beginning and continued that.â€
In the
court’s view, the issues Ocampo had raised went to the “weight [of the
evidence] as opposed to admissibility, and it’s as much weight as what the jury
wants to give it. And certainly the
arguments that you raise are good arguments and you can point that out to the
jury, but it doesn’t rise to the level that I think it is so unduly prejudicial
that the defendant’s constitutional rights would be hindered if I let it
in.â€
3.
Trial
testimony
Campana’s
trial testimony was substantially similar to the statements she made during the
June 24th police interview and the preliminary hearing. Campana stated that the man who extended his
arm toward her husband’s vehicle had a “little hair, pointy nose [and] was
light-skinned.†When the prosecution
asked Campana whether she saw this individual in the courtroom, she pointed to
Ocampo, but clarified that she was only “50 percent†certain and “not totally
sure.†Campana explained that although
she “was sure†Ocampo “looked like the person†who approached her husband, she
was not certain he was the same man. She
also confirmed that she had signed the statement on the photographic lineup
card indicating that Ocampo most resembled the assailant.
On
cross-examination, Campana admitted that, on the night of the incident, she was
afraid for her safety and told police she had not seen anything. However, she elected to speak to police on
June 24th “because [the officers] were right there present with me.†Campana could not recall whether she told
officers she was only five percent certain of her identification. However, she did recall stating that she was
hesitant to identify Ocampo because she did not want to blame an innocent
person. She also reiterated that
although she identified Ocampo because of his
“[similar] characteristics,†she was still not “sure†he was the
perpetrator.
The
prosecution also called Manuel Arzate, who was originally charged as a
codefendant. Arzate stated that he was
associated with the gang “Largo 36†and frequently hung out at a blue house
owned by a gang member named Ricardo.
Arzate knew Ocampo and considered him to be a member of Largo 36. On the evening of June 19, 2010, Arzate
was at Ricardo’s house drinking alcohol and smoking marijuana on the front
porch with Ocampo and eight or ten other guests. Ocampo and another member of Largo 36 got
into a dispute over money.
As the two
men were arguing, a driver in a white truck pulled up and started “stepping on
his gas . . . . and left a cloud of smoke or burned tire.†The truck drove off and then returned and did
the same thing again. According to
Arzate, Ocampo was “pumped up†from his dispute and said that they needed to go
“check†the driver of the truck. Arzate
explained that the term “check†meant that they needed to inform the driver that
he could not do things like that in their neighborhood. Ocampo then got a gun from Ricardo and put it
in his pocket.
Ocampo
started walking down the street toward the man in the truck. Arzate and others followed Ocampo, thinking
that they were just going “to tell him to stop.†Ocampo approached the driver and asked him
“what the fuck was his problem.†The
driver said he was going inside his apartment and was rolling up his
window. Arzate then saw Ocampo shoot
toward the driver three times. At the
time of the shooting, Arzate did not have a gun and did not see anyone else
with a gun other than Ocampo.
On
cross-examination, Arzate admitted that he told police he witnessed the
shooting only after being informed that he faced a sentence of 50 years to life
in prison. He also admitted that, prior
to agreeing to take a seven year jail sentence in exchange for his testimony,
he presented officers with several different versions of what had occurred.
The
prosecution also called Jorge S., who was Corrales’s 13-year-old nephew. On the night of the incident, Jorge was
outside playing cards with his cousin when he saw Corrales start “burning
rubber†and doing “donuts†in his white truck.
After Corrales parked the truck, Jorge saw three Hispanic males approach
the vehicle. He then heard three
gunshots and saw the men run away.
Several days later, Jorge was shown a photographic lineup and identified
Arzate as one of the men who was present during the shooting. He also testified that he had seen Arzate at
a blue house about a block away from Corrales’s apartment.
Ocampo did
not call any witnesses in his defense.
4.
Conviction
and sentencing
The jury found Ocampo guilty of
murder and found all of the special allegations to be true. The trial court sentenced Ocampo to a term of
25 years to life for murder, plus an additional consecutive term of 25
years to life for the use of a firearm.
(See § 12022.53, subd. (d).)
The trial court imposed an additional term for the gang enhancement, but
stayed that portion of the sentence.
The trial court ordered Ocampo to
pay fees and penalties including a forty dollar court security fee (§ 1465.8,
subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $20
DNA assessment (§ 76104.7), a $200 dollar restitution fine (§ 1202.4,
subd. (b)) and a $200 parole revocation fine (§ 1202.45). Ocampo filed a timely appeal.
DISCUSSION
Ocampo
raises two issues on appeal. First, he
contends that the trial court erred in denying his motion to suppress any evidence
related to Campana’s identification.
Second, he argues that the trial court had no authority to impose a $20
DNA assessment under Government Code section 76104.7.
Trial Court Did Not Err in Denying Ocampo’s Motion to Suppress Evidence Related
to Campana’s Identification
Ocampo
argues that officers engaged in improper, suggestive conduct that unfairly
tainted Campana’s initial out-of-court identification and her subsequent
in-court identifications.
>
1.
Summary
of applicable legal principles
“We
independently review ‘a trial court’s ruling that a pretrial identification
procedure was not unduly suggestive.’
[Citation.]†(
698-699 (Avila).) The defendant bears “the burden of showing an
unreliable identification procedure.†(
412 (Ochoa).)
“‘Due process requires the
exclusion of identification testimony only if the identification procedures
used were unnecessarily suggestive and, if so, the resulting identification was
also unreliable.’ [Citation.]†(Avila,
supra, 46 Cal.4th at p. 698.) The
proper inquiry is whether the identification procedure was “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.†(
377, 384 (Simmons); see also
926, 989.)
“‘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 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.]
In other words, ‘[i]f we find that a challenged procedure is not
impermissibly suggestive, our inquiry into the due process claim ends.’ [Citation.]â€
(Ochoa, supra, 19 Cal.4th at
p. 412.)
2.
The
trial court did not err in admitting the identification evidence
Ocampo
contends that officers employed two types of suggestive procedures that
resulted in an unreliable identification.
First, the officers allegedly utilized a suggestive photographic
lineup. Second, the officers allegedly
made statements and asked questions that pressured or otherwise induced Campana
to identify Ocampo as the assailant.
a.
The
photographic lineup was not unduly suggestive
Ocampo
argues that the photographic lineup was unduly suggestive because he was the
only person “who immediately appeared to be skinny†and “was the only person
depicted with both a mustache and a beard.â€
trial court rejected these arguments, concluding that the photographic lineup
included several “similar [appearing], young Hispanic males.â€
In
determining whether a photographic lineup was unduly suggestive, “‘[t]he
question is whether anything caused defendant to “stand out†from the others in
a way that would suggest the witness should select him.’ [Citation.]â€
(Cunningham, supra, 25 Cal.4th
at p. 990.) “‘[T]here is no requirement
that a defendant in a lineup be surrounded by people nearly identical in
appearance [citations] . . . .’
[Citation.]†(
773, 790.) “Because human beings do not
look exactly alike, differences [among individuals in a lineup] are
inevitable.†(People v. Carpenter (1992) 15 Cal.4th 312, 367 [superseded by
statute on other grounds, see Verdin v.
Superior Court (2008) 43 Cal.4th 1096, 1106 [superseded by statute on other
grounds], Maldonado v. Superior Court
(2012) 53 Cal.4th 1112, 1119, fn. 5]].)
Consequently, a photographic lineup will not be deemed unduly suggestive
where the defendant’s picture “was similar to that of the others.†(Cunningham,
supra, 25 Cal.4th at p. 990.)
We have
examined the photographic lineup and agree with the trial court’s finding that
it was not unduly suggestive. The six
individuals appearing in the lineup are all relatively young Hispanic males
with no noticeably distinctive features.
Three of the men have some form of facial hair, four have a closely
trimmed haircut and at least three appear to be “thin.†In sum, “[t]he facial idiosyncracies [
marked than those which normally distinguish one person from another.†(People
v. Malich (1971) 15 Cal.App.3d 253, 260 [disapproved on other grounds,
484, 489 [disapproved on other grounds Kowis
v. Howard (1992) 3 Cal.4th 888, 896].)
b.
The
officers’ questions and statements did not require the exclusion of Campana’s
testimony
Ocampo next
argues that the officers made several types of suggestive remarks that tainted
Campana’s identification. First, he
asserts that the officers improperly pressured Campana into making an
identification. Second, he contends that
officers asked leading questions that induced her to make an improper
identification. Third, he alleges that
the officers told Campana that Ocampo was the perpetrator, thereby tainting any
subsequent identification.
1.
The
detectives did not improperly pressure Campana to identify Ocampo
Ocampo
asserts that officers improperly pressured Campana to identify him as the
assailant by asking her if she was afraid to testify and by telling her that
they needed her cooperation to apprehend her husband’s killer.
The
interview transcript indicates that the officers became concerned Campana was
unwilling to make a definite identification because she feared for the safety
of herself and her daughter.
name="_ftnref4" title="">[4] To assuage her fears, officers informed
Campana that the police would be able to protect her and relocate the
family. Later in the conversation, the
officers told Campana that, without her cooperation, “the people that murdered
her husband for no reason are going to go unpunished.†The officers also stated that whoever
committed the crime should be made to “pay.â€
None of
these statements impermissibly suggested that Campana should select Ocampo or
otherwise made Ocampo stand out from the other individuals in the photographic
lineup. These comments do not reference
anything about Ocampo or include any information about the person they believed
committed the crime. At most, these
comments suggest the police were pressuring Campana to identify whoever she
believed committed the crime. Moreover,
the officers specifically admonished Campana that she was under no duty to make
an identification and that the suspect might not appear in the photographic
lineup.
In sum, the
fact that officers told Campana they would protect her from retribution and
could not apprehend the perpetrator without her cooperation was not unduly
suggestive of the perpetrator’s identity.
2.
The
officers’ clarifying questions and comments were not unduly suggestive
Ocampo next
contends that the officers asked a series of leading questions and made other
statements that were intended to “suggest that Campana’s [initial] description
of the suspect was not entirely accurate and to suggest the description of the
suspect that [the officers] wanted [her] to identify.â€
First,
Ocampo complains that the officers instructed Campana that, when reviewing the
photographic lineup, she should “take into account†that people can change
their hair style and facial hair. Ocampo
contends that because Campana initially described the suspect as clean shaven
and bald, officers included these admonishments to steer her toward Ocampo’s
photograph. A mere reminder that the
witness should consider the fact that a person may alter his or her appearance
does not give rise to “a very substantial likelihood of irreparable
misidentification.†(
384.) That is especially true here given
that several people in the photographic lineup had facial hair and only one
appears to be bald.
Second,
Ocampo complains that, prior to showing Campana the photographic lineup, the
officers asked leading questions that caused her to believe the suspect was
Hispanic and between the ages of eighteen and twenty. The record shows that when describing the
suspect, Campana initially said he was “like white.†The detectives inquired whether she meant
that he was “white†or a “light skinned†Hispanic, to which she responded, “I
think he was like kind of like Hispanic.â€
When Campana stated that the suspect was “really young. Like seventeen, eighteen years old,†an
officer asked her, “like between eighteen and twenty?†Campana responded “around there.â€
We find
nothing in these questions that suggested Campana should select Ocampo from the
photographic lineup. The questions were
merely intended to clarify the appearance of the man that Campana had
seen. Moreover, all of the individuals
in the photographic lineup appeared to be Hispanic males of a fairly young
age. It is therefore unclear how the
officers’ comments could be interpreted as an improper suggestion that Campana should select Ocampo.
3.
Campana’s
identification was not rendered unreliable by officer’s comment that police
believed Ocampo committed the crime
Finally,
Ocampo argues the police engaged in impermissibly suggestive conduct when an
officer informed Campana that Ocampo was included in the lineup because they
believed he committed the crime. Before
the officer made this comment, Campana had made several tentative
identifications of Ocampo that varied in their degree of certainty. Initially, Campana said Ocampo did “not look
much†like the assailant and that she was only “five percent†sure. She later stated that Ocampo looked “a little
like him†and then, on three occasions, said she “th[ought]†Ocampo was the
person, but was “not sure.†After
Campana made all of these statements and after she signed the photographic
lineup card, an officer informed her that “the reason [Ocampo] is in that
series of photos is because he’s the one that . . . .they think it was
him.â€
The
Attorney General argues that, as a matter of law, the officer’s comment cannot
be construed as unduly suggestive because it was “made after Campana’s initial
tentative identification [and therefore] did not induce that
identification.†Ocampo, however,
contends that the act was impermissibly suggestive because it caused Campana to
become more certain of her identification.
For the
purposes of this case, we need not resolve whether the comment was unduly
suggestive because, even if we assume that it was, “the in-court identification
was nevertheless reliable under the totality of the circumstances.†(People
v. Nguyen (1994) 23 Cal.App.4th 32, 38 (Nguyen)
[“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 circumstancesâ€].)
When assessing the reliability of an in-court identification, “the court
examines, ‘the opportunity of the witness to view the criminal at the time of
the crime, the witness’s degree of attention, the accuracy of [the witness’s]
prior description of the criminal, [and] the level of certainty demonstrated at
the confrontation . . . [citation].’
[Citations.]†(
Numerous
factors indicate that Campana’s identification was sufficiently reliable to
warrant admission at trial. First, the
evidence shows Campana “had a meaningful opportunity to view [Ocampo] at the
time of the crime.†(
window that provided a clear view of her husband and his vehicle at the time he
was shot. She also stated that Ocampo
was facing toward the window as he approached her husband’s vehicle, giving her
a clear view of the perpetrator.
Second, it
is apparent that Campana was paying close attention to the events that preceded
her husband’s shooting. Campana
testified that after hearing her husband’s truck pull in, she looked out the
window, watched the assailants approach and then watched the
confrontation. Her attention was focused
entirely on the events leading to her husband’s death.
Third, the
initial description that Campana provided of the perpetrator, which she offered
to police before seeing the photographic lineup or hearing the comment in
question, was consistent with Ocampo’s appearance. Campana informed the officers that the man
who approached her husband was a thin, Hispanic male in his late teens, with a
light complexion and a pointy nose.
Ocampo closely matches that description.
Fourth, the
reliability of Campana’s identification is bolstered by the fact that she
selected Ocampo from among the six pack of photographs prior to the allegedly
suggestive conduct. Before showing
Campana the photographic lineup, officers informed her that the assailant might
not be pictured and that she was under no obligation to make an identification. Despite those admonishments, she immediately
signaled to Ocampo’s photograph, noting that he had a “certain air†about
him. She later stated that she thought
Ocampo was the assailant but remained uncertain. Ultimately,
Campana agreed to sign a statement indicating that, of the six men
pictured in the lineup, Ocampo most resembled the man who approached her
husband. The fact that Campana selected
Ocampo prior to the conduct at issue suggests that her identification was not
tainted or otherwise caused by the allegedly suggestive conduct.
Finally,
the record indicates that Campana’s identification testimony remained
substantially consistent both before and after the allegedly suggestive
conduct. At the pretrial police
interview, Campana initially said she was five percent certain of her
identification. After examining the
pictures again, she repeatedly stated that she thought Ocampo was the
perpetrator, but was not certain. The
police then told her they believed Ocampo was the suspect. At the subsequent trial, Campana said she was
only fifty percent certain that Ocampo was the perpetrator. On cross-examination, defense counsel
questioned Campana extensively about her current and prior
identifications. Campana admitted that
she was uncertain of her identification during the pretrial interview and
remained uncertain now. These statements
indicate that, regardless of whether the officer’s comment that Ocampo
committed the crime was unduly suggestive, the comment did not have a material
effect on Campana’s testimony.
name="_ftnref5" title="">[5]
In sum,
there are numerous factors indicating that Campana’s testimony was sufficiently
reliable to warrant its admission at trial:
she was in a good position to see the crime; her attention was focused
on her husband when the shooting occurred; her initial description of the
suspect matches Ocampo’s appearance; she tentatively identified Ocampo before
the suggestive statement and her level of certainty regarding the
identification remained substantially identical both before and after the
allegedly improper suggestive conduct.
Trial Court Erred in Assessing a DNA Fee
Ocampo
contends that the trial court did not have the legal authority to impose a $20
DNA assessment under Government Code section 76107.7. The Attorney General agrees and requests that
we modify the abstract of judgment to strike the assessment.
At
sentencing, the trial court imposed a $200 restitution fine (§ 1202.4, subd.
(b)), a $40 court security fee (§ 1465.8, subd. (a)(1), a $30 criminal
conviction assessment (Gov. Code, § 70373) and a $200 parole revocation fine,
which was stayed (§ 1202.45). The court
also imposed what it described as “a $20 DNA fee.†The minute order does not include any
reference to a “DNA fee,†but the abstract of judgment states that the court
included a “DNA penalty assessment of $20 pursuant to [Government Code]
76104.7.â€
The version
of Government Code section 76104.7 in effect at the time of the trial court
proceedings stated, in relevant part:
“(a) Except as otherwise provided in this section . . . there shall be
levied an additional state-only penalty of one dollar ($1) for every ten
dollars ($10), or part of ten dollars ($10), in each county upon every fine,
penalty, or forfeiture imposed and collected by the courts for all criminal
offenses . . . . [¶] (b) . . . These
funds shall be deposited into the county treasury DNA Identification
Fund.†(Gov. Code, § 76104.7 (2009).)
As the Attorney General concedes in its
brief, however, “[t]he DNA fines [described in section 76104.7] do not apply to
[] any of the fines imposed in this case.â€
The statutes authorizing the four types of assessments imposed by the
trial court – restitution, court security fee, criminal conviction assessment,
and parole revocation fine – each contain language expressly stating that
section 76104.7 assessments do not apply to them. (See § 1202.4, subd. (e) [“The restitution
fine shall not be subject to penalty assessments authorized in . . . Chapter 12
(commencing with Section 76000) of Title 8 of the Government Codeâ€]; § 1465.8,
subd. (b) [“The penalties authorized by Chapter 12 (commencing with Section
76000) of Title 8 of the Government Code . . . do not apply to this
assessmentâ€]; § 70373, subd. (b) [“The penalties authorized by Chapter 12
(commencing with Section 76000) of Title 8 of the Government Code . . . do not
apply to this assessmentâ€]; § 1202.45 [“parole revocation restitution fine
shall not be subject to penalty assessments authorized by . . . Chapter 12
(commencing with Section 76000) of Title 8 of the Government Codeâ€]; see also
Cal.App.4th 1392, 1395-1396.) The trial
court therefore erred in imposing an independent DNA assessment, and the
judgment shall be modified to strike any reference to the assessment.
DISPOSITION
The judgment is affirmed, as
modified. The trial court is directed to
strike from the abstract of judgment the DNA penalty assessment under
Government Code section 76104.7. The
trial court shall forward a certified copy of the amended abstract of judgment
to the Department of Corrections and
Rehabilitation.
ZELON,
J.
We concur:
WOODS,
Acting P. J.
JACKSON, J.
title="">[1]
All further statutory references
are to the Penal Code unless otherwise specified.
title="">[2]
The prosecution called several
other witnesses whose testimony is not relevant to the issues on appeal.
