P. v. Phothisane
Filed 3/26/13
P. v. Phothisane CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY PHOTHISANE, Defendant and Appellant. | A132073 (San Francisco City & County Super. Ct. No. 209257) |
A
married couple walking home after dinner was robbed at gunpoint of a large bag
containing the wife’s laptop. The robber
sped away in a silver Mustang. The wife
memorized part of the license plate.
They called the police, describing the robber and the car. The next night, the police called them at
2:00 a.m. to ask if they could come to the police station immediately to
attempt an identification of a suspect.
Both husband and wife identified defendant in a cold show, and defendant
made admissions that led to the recovery of the laptop. A jury convicted defendant of robbery. On appeal, defendant argues the cold show
procedure was unnecessary and unduly suggestive, and his statements were
involuntary because they were induced by promises of leniency. We conclude the cold show was neither unnecessary
nor unduly suggestive under the circumstances of this case, and that
defendant’s statements were voluntary.
Therefore, we will affirm.
STATEMENT OF THE CASE
Defendant
Johnny Phothisane was charged by amended information with one count of
service of four prior prison terms.
(Pen. Code, §§ 211, 12022.53, subd. (b), 667.5, subd. (b).)
found the firearm use allegation true.
The prosecution dismissed the prior prison term allegations. In a later
amended the information deleting the firearm use allegation under section
12022.53, subdivision (b), adding a personal firearm use allegation under
section 12022.5, subdivision (a), and reinstating two of the prior prison term
allegations. Defendant admitted the gun
allegation and the two prior prison terms.
The court sentenced defendant to state
prison for 11 years. Defendant
timely appeals.
STATEMENT OF THE FACTS
The Robbery
Around
1:30 a.m. on October 18, 2008, Luis Costadone (Luis) and Amy
Kight Costadone (Amy) were walking home on Bay Street in San Francisco
after dinner when, at the intersection of Bay and Webster Streets, “somebody
jumped out of the corner.†Luis was
carrying his wife’s large brown bag. The
robber pointed a gun at him and said, “Give me the bag.†The gun was a very dark opaque metal
automatic, similar to the ones that police carry. When Luis did not react, the robber cocked
the gun, pointed it at his face and said, “This ain’t no joke. Give me the bag.†At this point, Luis was looking at the
gun and at the robber, but his main focus went to the gun. He did not notice the robber had a deformed
left hand.
After
Luis handed over the bag, the robber got into the passenger side of a silver
Mustang with tinted windows that was parked about 15 to 20 feet away, and the
car “took off.†The bag contained Amy’s
work laptop, phone, wallet with all her credit cards, keys, iPod, sunglasses,
and work shoes. The laptop, a Dell
machine, was marked “Property of PG&E Corporation.â€
Luis
had two glasses of beer that evening and was not drunk. The lighting was fairly good; the robbery occurred
under a street light. He was able to
clearly see the robber. Luis described
the robber as an Asian male with a shaved head, about six feet tall, wearing a
dark, puffy jacket and baggy jeans.
Amy’s
description of the robbery was consistent with her husband’s. She was standing about three feet away from
her husband when he was robbed, and the gun was never pointed at her. Amy also failed to notice a
deformity on the robber’s left hand.
After the robber got into the car, Amy stood in the middle of the street
memorizing the license plate number until the robber noticed her and shouted,
“Hey, get out of here.â€
In
a 911 call, Luis or his wife described the robber and the car and continued
walking home. The police arrived at
their apartment shortly after the couple did, 10 to 15 minutes after the
robbery. Luis described the event, the
robber and the gun.
Amy
described the robber at trial as an “Asian man, about early twenties, about 6
feet tall, black hair . . . shaved―not quite fully shaved but very
short hair,†wearing a black, puffy jacket and baggy jeans. This description was consistent with what she
told the 911 operator when she called on the night of the robbery. During that phone call, Amy conferred with
her husband about the color of the jacket―whether it was red or dark―and
the type of jeans. She also told the 911
operator the gun “looked like a toy gun.â€
She admitted to the 911 operator, “I don’t know what kind of gun it
was.â€
She
and her husband together provided a description of the robber and his clothing
when they met with the police outside their apartment.
Defendant’s Arrest and Initial Interview
Almost
exactly 24 hours after the robbery, at 1:00 a.m. on October 19, 2008, San
Francisco Police Officer Joan Cronin stopped a silver Mustang after the driver,
defendant, made an illegal turn from Turk Street onto Fillmore Street. The make, color and license plate matched the
description of the car involved in the previous night’s robbery. She detained defendant and his passenger,
another Asian male named Lucky Silharath.
A puffy jacket was located inside the vehicle. Defendant was arrested and transported to the
Northern Police Station.
Defendant’s
interview by Sergeant William Braconi was recorded. After defendant was Mirandized,
been in San Francisco the night before and he did not know anything about a
robbery or any stolen property. Braconi
described defendant’s demeanor at this point as relaxed, almost light. Braconi then told defendant that some people
had described his car, had gotten his license plate number, and “described him
to a tee†and were coming to “have a look†at him. At this point, defendant’s demeanor changed a
bit and he said he was feeling faint, although he did not appear faint to
Braconi. Braconi took defendant to the
location where he was to be viewed by the Costadones.
The Cold Show
The
police called the Costadones at approximately 2:00 a.m. to come to the police
station “to identify a possible suspect.â€
Luis’s request to come at a more convenient hour was denied. After the Costadones arrived at the station,
Officer Cronin explained the cold show procedure, using the San Francisco
Police Department’s cold show instruction form verbatim. Cronin admonished Luis and Amy separately. In essence, Cronin advised each of them that
they were going to be taken by police department personnel to a location where
they would be asked to look at a person to help determine if that person committed
the crime; that the person they would see may or may not be the perpetrator of
the crime being investigated; that they should not assume that the person they
look at committed the crime; that the police had someone detained, that the
detained person may or may not have been involved in the crime; and that they
were under no obligation to identify anyone.
In addition, Officer Cronin said:
“Do not think because this person’s detained by us that he committed the
crime in question. If you don’t identify
anybody, that’s okay. And don’t discuss
this with other victims or witnesses.â€
Officer Cronin asked each of the witnesses to confirm that he or she had
read and understood the admonition and then asked each of them to sign the
form. Each of them acknowledged that he
or she understood and then signed the form in Cronin’s presence.
First,
Luis was taken to the station parking lot in Officer Cronin’s patrol vehicle to
view defendant. He was able to make an
identification. Officer Cronin then went
through the same procedure with Amy. She
was also able to make an identification.
During
both cold shows defendant was handcuffed and illuminated in such a way that
each of the witnesses could see him, but he could not see them. The witnesses viewed defendant from a
distance of approximately 15 feet.
At
trial, the Costadones’ recollections of the cold show were consistent with
Officer Cronin’s.
Luis
did not feel obligated to pick the suspect.
He took a good look, just to be certain, and told the police
officer: “It looks very much like him,
yes.†At trial, Luis said that he knew
it was the same person who had robbed him because “he was dressed the same way,
and what I remember the most was kind of like the look. I remember the previous night he was―I
don’t know how to explain it, but there was like a stare, because I was
probably looking at his face the most since the gun was pointing at me all the
time, and it was the same expression the previous day. [¶] It was definitely the same person.†In addition, defendant tilted his head a
little bit sideways during the robbery and at the cold show.
After
viewing defendant, Luis was shown a silver Mustang. It was the same car, and it had the same
license plate that his wife reported in the 911 call. Amy also viewed the suspect during the cold
show from a police car. The suspect
stood in the spotlight in front of the police car about 15 feet away. After studying him for about 10 to 15
seconds, she told the police officer, “That’s him.†She was very “confident†about her
identification. She “did not want to
wrongly identify somebody and put them through an experience that they [didn’t]
deserve.â€
Defendant’s Admissions
After
the cold show, as defendant and Braconi were walking back into the station,
defendant volunteered he could get the computer back. Defendant asked Braconi something to the
effect, “Would it help . . . me if I could get the computer
back?†Braconi responded, “I would
convey that assistance to the judge, the district attorney, and whoever else
might follow up on this case.†When the
interview resumed, they “started trying to figure out how that was going to
take place.†Eventually, defendant
admitted the computer stolen in the robbery was in the possession of a person
named Phet, which is short for Somphet.
He said Phet’s sister had purchased the laptop for $200. Defendant never mentioned the name Bhot. Defendant said his passenger, Lucky, knew
where Phet lived.
Recovery of the Laptop
Lucky
and several police officers went to Phet’s house in Richmond, sometime after
3:00 a.m. There were several people
watching television and drinking beer in the garage. One of the men was using a PG&E
computer. Somphet told Braconi the
computer was his, but he had loaned it to the other person to use at that
particular moment. Phet signed a property
receipt for a Dell laptop computer with a label on the back that said “Property
of PG&E Corporation†when Braconi took the laptop.
Identifications At Trial
Luis
and Amy identified defendant at trial as the person who robbed Luis at gun
point on October 18, 2008. Amy
identified the laptop in evidence as hers.
Luis identified a black puffy jacket as familiar looking, in that he had
seen it on the robber.
The Defense Case
At
trial, Phet’s sister, 44-year-old Chanthone, testified she had been wanting a
laptop and one night after she came home from work as a custodian, at 2:00
a.m., she bought the Dell computer from a person whose name she did not
know. Her other brother, Thavone, had
knocked on her door and told her “this guy want to sell laptop.†Thavone also told her the laptop belonged to
the sister of this guy, and they wanted to sell it. She had never seen the seller before that
night. Thavone said it was a good
laptop, so Chanthone said, “Okay, then I’ll buy it.†She gave Thavone $200 for the computer, and
Thavone gave the money to the unknown seller.
The seller was an Asian man. When
she saw him, he was sitting down inside the garage where Thavone stayed, but he
looked tall, about five feet nine inches or five feet ten inches tall, and he
was bald headed. She never actually had
the laptop in her possession. She just
gave the money to her brother, and the seller said he was going to go get a
password from his sister so he could unlock the computer. Chanthone never saw the laptop again. She had seen defendant before, but he was not
the person who sold her the laptop. At
the time of trial, her brother Thavone was in prison.
Five
days after the robbery, Chanthone bought a silver Mustang from defendant’s
mother, at his mother’s request. She
paid defendant’s mother about $1300 for it.
Defendant’s mother wanted to get the car from impound, and she did not
have the money. Chanthone went to San
Francisco with defendant’s mother and purchased the car from impound. Both Chanthone and defendant signed the
documentation for the purchase of the car on October 23, 2008. She had seen the car parked in front of her
house when “Johnny†came to visit her brother, but not the night she bought the
laptop, that she remembered.
Fifty-one-year-old
Phet testified that his sister Chanthone gave the laptop to their brother
Thavone. Phet knew a man named Bhot, who
was six feet tall and bald. Thavone told
Phet that he (Thavone) had made a deal with Bhot for the laptop, but Phet did
not see the deal. Phet had known
defendant for about two months before the night the police came for the laptop,
but he never heard that defendant was nicknamed “Phot.†Phet had known Bhot for “a couple [of]
months†as of the night of the laptop incident, but Phet did not see him
thereafter. Phet signed a receipt giving
the laptop to the police, but it was his friend Savone who actually had it that
night.
Forensic
science consultant James Norris testified as an expert in firearms and
replicas. Metal replica guns “are
actually very complicated devices . . . [that] are designed to appear to
operate in exactly the same way as a real semiautomatic pistol that would fire
an explosive cartridge, like a real gun . . . .†The muzzle of a replica gun is usually “day
glow orange†in color, but can be darkened with a felt pen. Quality replicas with darkened muzzles mimic
real guns so well “you cannot tell the difference without actually taking the
weapon into your possession and examining the internal mechanism.â€
Forensic
psychologist Dr. Mitchell Eisen testified as an expert on eyewitness memory and
suggestibility. Human memory is not as
perfect as a camera, and attentional capacity limits ability to remember
accurately. Asked to recall information,
we tend to fill in the gaps using inferences that make sense to us. Sometimes those inferences are “spot on†and
sometimes they are in error.
Misinformation studies have shown that suggestibility plays a role in
how something is recalled. If the
information makes sense, is plausible, and comes from a good source, the
information can be incorporated into the memory, even if the information is in
error.
Alcohol
consumption can dim memory. Studies have
shown that intoxicated persons are more likely to make
persons. He opined that intoxicated
people oftentimes will have more gaps in their memories and so are more open to
suggestion from good sources about how to fill in those gaps.
Similarly,
traumatic stress can narrow the attentional focus at the expense of the ability
to process other information that would otherwise be easily noticed. For this reason, the presence of a weapon may
adversely affect memory. It is very
common for people to become focused on the weapon. Trauma can also affect one’s sense of time.
The
passage of time can affect a person’s memory.
“[M]emory reports given closer to the experience in time tend to be more
detailed and otherwise more accurate than those given after lengthy delays.†In addition, as time passes, there are more
opportunities to be influenced by post-event information that can influence
memory. “[T]hat’s why memory reports
given closer to the event are less likely to be affected by these other sources
and tend to be fresher and more detailed.â€
When witnesses talk to each other about an event they all experienced,
they tend to incorporate into their memories details they learned from others,
but could not have seen themselves.
Dr.
Eisen also opined that, in cold shows, witnesses are admonished that the person
in the cold show is not necessarily the person involved in the crime. The reason for this is “[i]t’s well
understood that many, if not most people, when they come to any identification
test whatsoever . . . assume that the person being shown to them
. . . must in fact, be the culprit.
And it’s their job to figure out which one he is or to make the
identification now or . . . lose their chance.†The admonition works against the assumption
that the police know something they don’t.
Studies show that the false-positive error rate for cold shows is higher
than for lineups.
Defendant
testified in his own behalf. He was 24
years old in October of 2008. He had two
felony convictions, one for auto burglary in 2006 and one for joyriding. Bhot is a friend of his. On October 17, 2008, Bhot borrowed his
car. Defendant was home watching
television all that night until he went to sleep. Bhot brought the car back about 4:30 p.m. the
next day. They smoked crystal meth in the
bathroom of defendant’s house. Bhot
pulled out a wad of money and gave defendant $30. Defendant asked Bhot where he got all that
money and Bhot said he sold a laptop to Somphet’s sister. Defendant asked no more questions and Bhot
left.
Later
that night, defendant and his friend Lucky went to San Francisco. While driving his car, defendant was stopped
by the police. He was taken to the
Northern Police Station, handcuffed to a bench, and told by Sergeant Braconi
that he was a suspect in a robbery that had occurred the previous night. Defendant told the officer, “I don’t know
what [you’re] talking about.†When
Braconi asked him if the people who were coming to the station would be able to
identify him, defendant said, “No.â€
Braconi “kept insisting about people’s property.†Defendant was not able to give Braconi any
information about the property. But
after the cold show, he realized “this might have something to do†with the
laptop Bhot told him about, and so defendant told Braconi, “I knew of a laptop.†Braconi “asked me, ‘Can you get these
people’s property back?’ [I] said I
could. ‘I don’t know if it’s the laptop
you’re looking for.’ That’s what I told
him.â€
Defendant
said he might be able to get the property back if Braconi would allow him to
use the phone. Braconi gave defendant
access to the phone, and defendant called his mother and his mother’s boyfriend
several times, but neither answered.
Defendant then suggested that Lucky, whom he assumed was still at the
police station, could drive his car to Richmond to get the laptop from
Somphet. Braconi said, “No.†Defendant then told Braconi the laptop was at
a house on 30th Street in Richmond, and that Lucky knew the house. After that, Braconi left. Defendant thought Braconi would return with
the laptop and let him go home. Instead,
Braconi never came back and defendant went to jail.
Defendant
did not mention Bhot to Braconi because he did not want to be a snitch. Defendant testified he did not rob Luis
Costadone, was not even in San Francisco when the robbery happened, and was
innocent.
DISCUSSION
Admissibility of Identification Evidence
Prior
to trial, an Evidence Code section 402 hearing was held on the admissibility of
the Costadones’ identifications after the cold show and their anticipated
in-court identifications. Following the
hearing, at which Officer Cronin and the Costadones testified, the court denied
the defense motion to suppress the identifications and ruled the evidence
admissible.
On
appeal, defendant renews his constitutional
objections and argues that the Costadones’ identifications of defendant
after a cold show were obtained in a manner and under circumstances that were
so suggestive as to cast serious doubt on their accuracy. He asserts that his conviction should be
reversed because his due process rights were violated by reliance on a “highly
dubious and prejudicial procedure,†and because the Costadones’ subsequent
identifications at trial were not independently reliable under the totality of
the circumstances. For the reasons
discussed below, we disagree the cold show procedure used in this case, or the
admission of the Costadones’ identifications of defendant at trial, violated defendant’s
constitutional rights.
Factual Background
At
the hearing, Officer Cronin testified that following the traffic stop,
defendant was detained for possession of auto burglary tools. He also had a parole hold. Defendant’s passenger, Lucky, was also
detained.
At
2:35 a.m., Officer Cronin read to Luis and his wife separately the police
department’s written cold-show admonition, a form which each acknowledged and
signed. Cronin advised each participant
he or she would be looking at a person to help determine if that person
committed the crime; the person may or may not be the perpetrator of the crime
being investigated by the police; the witness should not assume that the person
in the cold show committed the crime; the witness should not discuss the matter
with any other victims; and no witness was under an obligation to identify
anyone.
Luis
identified defendant as the robber. He
told Cronin: “It looks very much like
him, yes.†When Cronin asked him “if he
was sure . . . he said he was sure or he said yes.â€
At
2:40 a.m., the cold show with Amy followed.
She identified defendant as the robber.
She told Cronin, “[T]hat’s him.â€
Asked by Cronin if she was sure, Amy responded, “I feel confident that’s
him.â€
At
trial, the parties stipulated that the robbery involved a short period of time,
a minute or less.
Luis
confirmed that at the station a police officer went over every part of the
cold-show admonition form with him and he signed it. He was at the station for about half an hour
before the actual viewing. During the
cold show, he was about 15 to 20 feet away from defendant. He knew right away that defendant was the
robber because defendant had the same stare and expression on his face as the
night before, and it was “very vivid†in his mind. There was no chance he identified defendant
because the police had told him about the car and other facts related to the
incident. He did not feel pressured by
the police to make a decision, and if it wasn’t the person he would have said,
“I’m not sure or no.â€
Amy
testified that her husband told her the police had called to say they had
somebody who may have been involved in the robbery the previous night, and the
two of them needed to go down to the station then. At the station, she was advised of some rules
prior to the viewing. She signed a
document, confirming that she understood the rules. She received the same admonitions her husband
was given by Officer Cronin.
During
the cold show she was in the back of a police car and her husband was not with
her. The suspect was brought into the
parking lot and stood about 15 feet away.
He was illuminated by a spotlight and handcuffed. There was at least one police officer in
close proximity to him.
Amy
did not feel she was expected to identify the suspect and felt no pressure to
do so. She was confident in her
identification because the suspect had the same build as the robber and she
remembered his face. She was also
confident that she identified the suspect’s vehicle after she identified him.
On
the night of the robbery, there was adequate street lighting; she got a very
good look at the robber’s face.
Principles Governing Pretrial Identification Procedures
We apply the following principles to the question whether
an identification following a cold show requires suppression. The defendant bore the burden below of
showing an unreliable identification procedure.
“ ‘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 . . . . 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.]†(
412 (Ochoa);
see also People v. Kennedy (2005) 36
Cal.4th 595, 608, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
The Cold Show Here Was Not Unduly Suggestive
Or Unnecessary
Defendant
argues that the cold show here was impermissibly suggestive because the
information given to the witnesses, and the manner in which it was delivered,
improperly suggested to them “that the perpetrator had been apprehended and
that it was crucial that they corroborate that fact.†Specifically, he asserts the procedures used here
were unduly suggestive in that: (1) Luis
was told on the phone that a “suspect†had been apprehended; (2) by calling the
Costadones at 2:00 in the morning, “the police well may have led the witnesses
to believe that they would not need to show up at such an inconvenient time,
were the police not certain that the suspect was the man who had robbed Luisâ€;
(3) that inference was strengthened by the officer’s refusal to let the
Costadones come to the station later; (4) at the station prior to the cold
show, the Costadones were told the suspect had been found in a car that matched
the description of the robber’s car; (5) the cold show was conducted at the
police station “where appellant was clearly in police custodyâ€;
(6) spotlights were shining on him; (7) at least one officer was escorting
and guarding him; (8) defendant was handcuffed; and (9) following the viewing,
the police escorted defendant back into the station. He concludes:
“Viewed in totality, the situation undoubtedly indicated to the
witnesses that, to the police, [defendant] was clearly the perpetrator.â€
“Suggestive
confrontations are disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are condemned for the
further reason that the increased chance of misidentification is gratuitous.†(Neil
v. Biggers (1972) 409 U.S. 188, 198.)
However, we begin our analysis with the understanding that a
single-person showup is inherently
suggestive (People v. Odom (1980) 108 Cal.App.3d 100, 110), but is not
for that reason inherently unfair. “ ‘A
procedure is unfair which suggests in advance of identification by the witness
the identity of the person suspected by the police.’ [Citation.]â€
(Ochoa, supra, 19 Cal.4th at p. 413.) Whether an identification procedure is unduly
suggestive and unfair depends upon the procedure used, as well as the
circumstances in which the identification takes place.
Here,
many of the details of the cold show that defendant argues were unduly
suggestive are inherent in any
showup, especially one that occurs at night.
These include the illumination with spotlights, the
officer nearby. It is also inherent in
any showup for the police to indicate they have a suspect in custody. Why else would the police ask the victims or
witnesses of a crime to view the person?
Moreover, conducting the showup at a police station rather than on a
street corner does not seem unduly
suggestive— in either case, it is clear to the witness that a suspect is in
custody. And, Officer Cronin testified
that she would typically conduct a cold show at the station in the situation
where, for example, a suspect had been arrested and transported to the station
because the complaining witness was not immediately available.
Citing
People v. Sandoval (1977) 70
Cal.App.3d 73 (Sandoval), defendant
argues the cold show here was not only unduly suggestive, but also unnecessary
because there were no “compelling reasons†to conduct a single person showup,
as opposed to waiting until a time when a photo or corporeal lineup could be
arranged. However, compelling reasons
often reside in the judgment of the officer.
Prompt identification of a suspect close to the time and place of the
offense serves a legitimate purpose in quickly ruling out innocent suspects and
apprehending the guilty. (People v.
Martinez (1989) 207 Cal.App.3d 1204, 1219.)
Such identifications are likely to be more accurate than a belated
formal lineup identification. (Ibid.) Here, the cold show was arranged as soon as a
suspect in the robbery was detained, which happened to be 25 hours after the
crime occurred. It was very important to
confirm or dispel suspicion of defendant’s involvement sooner rather than later. The victims’ memories were relatively fresh,
and the chance that they would muddy their individual recollections by
repeatedly going over the traumatic event with each other increased with the
passage of time. In addition, if the
victims were able to identify defendant as the robber, there was a very real
possibility that police would be able to recover some of the property if they
acted quickly enough. In this case,
conducting a cold show as soon as possible made sense and was a necessary
component of the police investigation.
Cal.App.3d 73, is
distinguishable. In that case, “[t]he
victim was told by the police before she saw the defendant that they would
bring the suspect through that hallway because they were bringing others
through another way. She affirmed that
when she saw him she ‘understood’ that he was the man the police ‘thought’ had
‘snatched’ her purse. Thus . . . ‘the
procedure followed in effect suggested’ to the victim that defendant was the
robber.†(Id. at p. 85.) Importantly,
in Sandoval the police
the showup in the police station.
The
trial court did credit Amy’s testimony she was advised before the cold show the
police also had a vehicle in custody, and Luis’s testimony the police used the
term “suspect†prior to the cold show.
The court saw both circumstances as suggestive. However, viewed in the totality of the
circumstances, those comments did not make the cold show unduly suggestive or
unfair, given the efforts made by the police to admonish the witnesses and
neutralize the inherent suggestiveness of the procedure. We conclude the cold show identification
procedure used here was not constitutionally infirm. (Cf. People v. Gomez (1976) 63
Cal.App.3d 328, 335–337, [one person showup was permissible notwithstanding
that victim was told there was a suspect the police wanted her to look at, that
the defendant was standing outside a patrol car, handcuffed, with two officers,
and that victim volunteered her identification before being admonished].)
In light of our conclusion the cold show
was not impermissibly suggestive, we could end our inquiry here. (Ochoa,
supra, 19 Cal.4th at p. 412.)
However, even assuming arguendo the cold show procedure was unnecessary
and unduly suggestive, we do not find that the identifications were unreliable
under a totality of the circumstances.
“[T]he factors to be considered in
evaluating the likelihood of misidentification include the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation, and the
length of time between
the crime and the confrontation.†(Neil
v. Biggers, supra, 409 U.S. at pp.
199–200.) Defendant argues the
identifications were unreliable because there was a lapse of 25 hours between
the cold show and the robbery, the robbery itself lasted only a short time, the
robber did not wear distinctive clothing, neither witness noticed a glaring
deformity in his left hand, i.e., missing fingers, and Luis was focused on the
gun.
We disagree with defendant’s reflections
on the Neil v. Biggers factors. In our view, the cold show was conducted
while the previous night’s event was still fresh in the Costadones’ minds; each
of them had sufficient time and ample lighting to get a good look at the
robber’s face and were focused on it, as well as the gun; their descriptions of
the robber were accurate; and both of them were very confident of their
identifications. Under the totality of
the circumstances, the identifications were sufficiently reliable to go to the
jury, and no error occurred.
Involuntariness of the Admissions
Prior
to trial, the court held an Evidence Code section 402 hearing on the
admissibility of defendant’s statements to Sergeant Braconi. After considering Sergeant Braconi’s
testimony, an audiotape of the interview, and a transcript of the interview,
the trial court concluded defendant’s admissions were not induced by promises
of leniency.
On
appeal, defendant renews his argument that defendant’s admissions were
involuntary because Sergeant Braconi induced him “to admit knowledge of where
the laptop was by implied promises of leniency, were he to assist the police in
finding it.†As we explain below, after
a careful and independent review of Sergeant Braconi’s testimony at the section
402 hearing, the audiotape of the statement, and the transcript of the
interview, we also conclude that defendant’s admissions were not induced by
implied promises of leniency.
Standard of Review
“On appeal,
we review independently the trial court’s determination on the ultimate legal
issue of voluntariness.†(People v.
Williams (1997) 16 Cal.4th 635, 659 (Williams).) “But any factual findings by the trial court
as to the circumstances surrounding an admission or confession . . .
are subject to review under the deferential substantial evidence standard.†(Id. at p. 660. See also People
v. Vasila (1995) 38 Cal.App.4th 865, 873 [“When, as here, the interview was
tape-recorded, the facts surrounding the giving of the statement are
undisputed, and the appellate court may independently review the trial court’s
determination of voluntariness.â€].)
Applicable Legal Principles
confession is voluntariness.†(People
v. Kelly (1990) 51 Cal.3d 931, 950 (Kelly).) “A confession or admission is involuntary,
and thus subject to exclusion at trial, only if it is the product of coercive
police activity.†(Williams, supra,
16 Cal.4th at p. 659.) However, “[a]ny
interview of one suspected of a crime by a police officer will have coercive
aspects to it, simply by virtue of the fact that the police officer is part of
a law enforcement system which may ultimately cause the suspect to be charged
with a crime.†(Oregon v. Mathiason
(1977) 429 U.S. 492, 495.) Nevertheless,
that fact does not render admissions or confessions involuntary. Nor does the use of deceptions and ruses to
convince the suspect that the police have evidence that ties him to the crime,
although it is a factor suggestive of coercion.
(People v. Esqueda (1993) 17 Cal.App.4th 1450, 1484 (Esqueda);
People v. Parrison (1982) 137 Cal.App.3d 529 [gunpowder residue]; People
v. Watkins (1970) 6 Cal.App.3d 119 [fingerprints].) “Although coercive police activity is a
necessary predicate to establish an involuntary confession, it ‘does not itself
compel a finding that a resulting confession is involuntary.’ [Citation.]
The statement and the inducement must be causally linked.†(People
v. Maury (2003) 30 Cal.4th 342, 404–405 (Maury); People v. Ray (1996) 13 Cal.4th 313, 340; People
v. Benson (1990) 52 Cal.3d 754, 778.)
“A confession may be found involuntary if extracted by threats or
violence, obtained by direct or implied promises, or secured by the exertion of
improper influence.†(
In determining voluntariness, the
critical issue is “whether the defendant’s ‘will was overborne at the time he
confessed.’ †(Maury, supra,
30 Cal.4th at p. 404; In re Shawn D. (1993) 20 Cal.App.4th 200, 208 (Shawn
D.).) “No single event or word or
phrase necessarily determines whether a statement was voluntary.†(Kelly, supra, 51 Cal.3d at p.
950.) “In deciding the question of
voluntariness, the United States Supreme Court has directed courts to consider
‘the totality of circumstances.’ â€
(Williams, supra, 16 Cal.4th at p. 660.) Relevant factors include details about the
interrogation, such as its length and location, as well as the existence of any
police coercion; they also include the individual characteristics of the
accused, such as maturity, education, sophistication, and physical and mental
condition. (Ibid.; see also Shawn
D., supra, at p. 209.)
When an admission is challenged as
involuntary, the People have the burden of proving voluntariness by a
preponderance of the evidence. (People
v. Markham (1989) 49 Cal.3d 63, 71.)
Defendant argues Sergeant Braconi
indicated to him “that if he assisted in getting the laptop returned, he would
benefit substantially. The detective
repeatedly linked the fact that witnesses were prepared to identify [defendant]
with insinuation that he would be treated more leniently were he to retrieve
the laptop.†As evidence of this implied
or insinuated promise, defendant points to the following italicized portions of
the questioning, prior to the cold show:
“[BRACONI]: ‘So you’re not gonna get identified
tonight? Johnny?’
“[DEFENDANT]: ‘Did they, did they said I did it? What can I do?’
“[BRACONI]: ‘Well,
there’s something you can do. You can
help me get your, their stuff back, which is the main thing they want. You know what I’m saying?’
“[DEFENDANT]: ‘Am I being accused or something?’
“[BRACONI]: ‘Johnny?’
“[DEFENDANT]: ‘(Inaudible.)’
“[BRACONI]: ‘Are they gonna identify you? It just happened less than 24 hours ago,
man.’
“[DEFENDANT]: ‘We’ll find out.’
“[BRACONI]: ‘Let me tell you something. They got you with the license plate on your
car. That’s why you got stopped.’
“[DEFENDANT]: ‘Friends, my friends use[d] my car.’
“[BRACONI]: ‘Well, but they saw you and they described
you perfectly as the guy who put a gun in their face.’
“[DEFENDANT]: ‘Gun?’
“[BRACONI]: ‘Yeah.’
“[DEFENDANT]: ‘I don’t even have a gun.’
“[BRACONI]: ‘You got a picture of a gun on your phone.’
“[DEFENDANT]: ‘That’s old.’
“[BRACONI]: ‘Johnny?
Johnny, before we go out there, can you tell me where their stuff is?’
“[DEFENDANT]: ‘I don’t know where their stuff is.’
“[BRACONI]: ‘What happened to it?’
“[DEFENDANT]: ‘I don’t know.’
“[BRACONI]: ‘Well, did your friend take it?’
“[DEFENDANT]: ‘My friends use[d] my car all the time.’
“[BRACONI]: ‘Dude, you were there. They described you to a “tâ€.’
“[DEFENDANT]: ‘What do you mean they described me to a
“t�’
“[BRACONI]: ‘They described you to a “tâ€.’
“[DEFENDANT]: ‘They described me? How well?’
“[BRACONI]: ‘Asian male, 20s, . . . slim to
medium build. Dark puffy coat, baggy
jeans, [s]haved head. Does [that] sound
like anybody you know?’
“[DEFENDANT]: ‘(Inaudible.)’
“[BRACONI]: ‘With a license plate that matches your
license plate? Come on, man. Johnny?’
“[DEFENDANT]: ‘A lot of Asians are bald.’
“[BRACONI]: ‘Okay, but driving your car? Johnny?’
“[DEFENDANT]: ‘Did they say I―’
“[BRACONI]: ‘—Johnny, Johnny.’
“[DEFENDANT]: ‘What?’
“[BRACONI]: ‘Okay,
once we go out there, there’s no turning back.
I’m going to give you a chance right now, to help me get their property
back and maybe alleviate this situation.’
“[DEFENDANT]: ‘What do you mean, alleviate the situation?’
“[BRACONI]: ‘What do you mean alleviate―help me get
their property back. You want to tell me
where their computer is? Help me get the
computer back. How’s that? Can you help me get the computer back?’ †(Italics added.)
Defendant argues that when Braconi
told defendant there was something he could do, in response to defendant’s
questions “[D]id they said I did it?†and “[W]hat can I do?†it was the
“conspiratorial equivalent to a wink, saying that though he was not explicitly
offering lenient treatment, that was what he was consciously implying.†Then, when defendant still did not give up
any information, Braconi said he was giving defendant one more chance to
“alleviate this situation.†When defendant
asked for clarification, Braconi “skirted the issue but continued to ask
appellant for help in retrieving the laptop.â€
The bottom line is Braconi was responding to questions asserted by
defendant.
We do not share defendant’s
interpretation of Braconi’s interview tactics.
Braconi was intent on recovering Amy’s work laptop. His tactic was to convince defendant that the
police already had so much evidence against him that he might as well help the
victims out. We do not see Braconi’s
questions as conspiratorial. We do agree
that Braconi’s comment that he was going to give defendant “a chance right nowâ€
and that after the cold show there would be “no turning back†could have
suggested to defendant that there was some sort of carrot being dangled in front
of him if he cooperated. But, as
defendant acknowledges, Braconi responded to defendant’s request for
clarification by “skirting the issue,†while continuing to ask for help in
locating the laptop. However, skirting
the issue and asking for help is not the same as impliedly promising
leniency. In our view, if Braconi’s
initial comments dangled a carrot before defendant, then Braconi’s response
effectively snatched the carrot back.
Sergeant Braconi’s response obliquely negated any implication that if
defendant helped police recover the computer, there might be a “turning
back.†At most, Braconi’s clarification
suggested that defendant had misunderstood his comments, and that he meant only
to appeal to defendant’s altruism―that is, the situation to be alleviated
was the victims’, not his. In any event, no admissions were made at this
time. Braconi’s comments did not yield
the hoped for cooperation. Thus,
Braconi’s italicized comments prior to the cold show cannot be shown to be
causally linked to any admission.
Braconi testified that after the
cold show, on the way back to the holding area, defendant pointedly asked him,
“What if I could get back their property?â€
Braconi responded, “it’s something that the courts, the jury, the
district attorney, and the judge . . . might consider as favorable to
[you].†This did not amount to an
implied promise of leniency either. It
is akin to telling the defendant it would be better to tell the truth: as long as there is no promise of leniency as
a reward for telling the truth, this tactic is not improper. (People v. Belmontes (1988) 45 Cal.3d
744, 773 (Belmontes), disapproved on another point in
421, fn. 22; Esqueda, supra, 17 Cal.App.4th at p. 1484.)
Defendant also points to part of an
exchange that occurred immediately after he questioned the officer. By this point, defendant had already
indicated, in an unrecorded conversation, that he might be able to get the
laptop back and had asked Braconi to bring him his phone so that he could make
some phone calls. The following colloquy
then occurred:
“[BRACONI]: ‘This one yours? This yours?
Turn around.’
“[DEFENDANT]: ‘(Mumbles.)’
“[BRACONI]: ‘What’s that?’
“[DEFENDANT]: ‘(Inaudible) laptop.’
“[BRACONI]: ‘Well, I haven’t seen a laptop yet, have I?’
“[DEFENDANT]: ‘(Inaudible.)’
“[BRACONI]: ‘I don’t know anything, man. All I know right now is is [
able to get somebody’s property back.
back. You understand what I’m
saying? I mean, there’s there [
one person involved in this, couldn’t there have been? Right?’
“[DEFENDANT]: ‘Mmm.’
“[BRACONI]: ‘What happened to your hand?’
“[DEFENDANT]: ‘I was born this way [unintelligible]
downloaded stuff [unintelligible].’
“[BRACONI]: ‘(Inaudible.)
Now this is a phone call to your mom, right, nobody else? What type of gun is that in that picture? Is it a real gun? What type is that, H & K? Holy moly, that thing moves slow. I thought my phone was slow.’
“[DEFENDANT]: ‘Come on.’
“[BRACONI]: ‘Have to reboot it?’
“[DEFENDANT]: ‘Yeah.
It takes a while for her to get here.’
“[BRACONI]: ‘Would your mom know how to get to where we
are? She knows the city?’
“[DEFENDANT]: ‘Um, yeah she does.’
“[BRACONI]: ‘Okay.’
“[DEFENDANT]: ‘What is the street called?’
“[BRACONI]: ‘This is, ah, Eddy? But I’ll get you, let me get the exact
address. What’s the address here?’
“VOICE: ‘1125 Fillmore.’
“[BRACONI]: ‘The cross is―’
“VOICE: ‘Turk.’
“[BRACONI]: ‘Eddy?’
“VOICE: ‘Turk.’
“[BRACONI]: ‘Okay, great.
Thanks. All right, I got the
address. Do you think you can get the
phone too, or just the laptop?’
“[DEFENDANT]:
‘(Inaudible.)’
“[BRACONI]: ‘What?’
“[DEFENDANT]: ‘The laptop.
(Inaudible.)’
“[BRACONI]: ‘Okay.’
“[DEFENDANT]: ‘I know of, I know of a laptop.’
“[BRACONI]: ‘Okay, all right, I hear ya.’
“[DEFENDANT]: ‘I don’t know if it’s the same one.’
“[BRACONI]:
‘I’m glad I don’t own a Blackberry,
man. Are they all like this?’
“[DEFENDANT]: ‘Am I still going to jail or you think you’re
gonna be [inaudible].’
“[BRACONI]: ‘We
gotta, we gotta, so far, not, at this point you haven’t even made a phone call
yet. I mean, as far as you going to jail
or not, like I told you, that’s as far along in this investigation as we’re at,
all right? You got two people out there
who’ve positively identified you. They
want their property back, okay?’
“[DEFENDANT]: ‘What did they say?’
“[BRACONI]: ‘What’s that?’
“[DEFENDANT]: ‘What did they say?’
“[BRACONI]: ‘They said they want their property
back. . . .
[¶] Their main concern is getting their property back.’
“[DEFENDANT]: ‘Are they willing to look―’
“[BRACONI]: ‘What’s that?’
“[DEFENDANT]: ‘Are they willing to look the other way? Assuming that you―if I did.’
“[BRACONI]: ‘Well, are you able to get the property is
the question. I mean, that’s what I
wanna know.’ †(Italics added.)
Defendant argues that Braconi was
again speaking conspiratorially in telling defendant that he was not asking how
defendant got the laptop back, and that even though Braconi “deflectedâ€
defendant’s question whether he was “still going to jail,†“the overall tenor
of Braconi’s statements were intended to lead [defendant] to believe that, were
he to successfully orchestrate the return of the laptop, then [defendant] would
be released or at least treated far more leniently.†We disagree.
In our view, the transcript shows that, after the cold show, defendant
finally understood that Braconi had the upper hand in terms of evidence, and he
was trying to make the best of a bad situation.
Defendant also argues that
would look the other way, were the laptop returned,†but again, we see it
differently. Braconi never intimated
that either he, or the victims, would look the other way. On the other hand, defendant’s comment
indicates that he was angling for a concession in exchange for his cooperation,
a concession which Braconi never made.
line to be drawn between permissible police conduct and conduct deemed to
induce or to tend to induce an involuntary
statement does not depend
upon the bare language of inducement but rather upon the nature of the benefit
to be derived by a defendant if he speaks the truth, as represented by the
police. Thus, ‘advice or exhortation by
a police officer to an accused to “tell the truth†or that “it would be better
to tell the truth†unaccompanied by either a threat or a promise, does not
render a subsequent confession involuntary.’ †(People v. Hill (1967) 66 Cal.2d 536,
549 (Hill); Belmontes, supra, 45 Cal.3d at p. 773; People v.
Maestas (1987) 194
Cal.App.3d 1499, 1507.) “When the
benefit pointed out by the police to a suspect is merely that which flows
naturally from a truthful and honest course of conduct, we can perceive nothing
improper in such police activity. On the
other hand, if in addition to the foregoing benefit, or in the place thereof,
the defendant is given to understand that he might reasonably expect benefits
in the nature of more lenient treatment at the hands of the police, prosecution
or court in consideration of making a statement, even a truthful one, such
motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not
be expressed, but may be implied from equivocal language not otherwise made
clear.†(Hill, supra, at p. 549;
People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
The record shows that, at the beginning
of the interview, defendant was confident he could not be tied to the robbery,
and so he had no incentive to help the police find the laptop, and did
not. However, as Braconi revealed the
evidence against him and defendant became convinced that he had, in fact, been
positively identified at the cold show, defendant hoped to ingratiate himself
with Braconi and thereby wring some shred of leniency from Braconi by helping
him get the laptop back. But the record
shows that Braconi did not impliedly offer defendant a quid pro quo in exchange
for defendant’s assistance in recovering the laptop. We believe the evidence here indicates
defendant was evaluating his options, shifting initially from confidence he
would avoid being charged to concern over his circumstances after the cold show
was completed.
It is true Braconi never explicitly
disabused defendant of the misconception that some benefit might flow from his
cooperation in the recovery of the laptop, as the police did in People v.
Boyde (1988) 46 Cal.3d 212,
239, disapproved on another point in People
v. Williams, supra, 16 Cal.4th 635, 660–661 [officer “clearly stated that
he had no authority to make any promise of
but could only pass information on to the district attorneyâ€]. Neither did he ever indicate or imply that he
would intercede with the legal authorities on defendant’s behalf. (Holloway, supra, 33 Cal.4th at p. 116
[“detectives did not represent that they, the prosecutor or the court would
grant defendant any particular benefit if he told them how the killings
happenedâ€].) Viewed in the totality of
the circumstances as we must, we conclude that Sergeant Braconi may have toed
close to the line with his comment about alleviating the situation, but he did
not cross into the land of improper police tactics.
Moreover, on this record, we cannot
agree that Braconi’s comments were the motivating cause of defendant’s
inculpatory statements. Defendant was no
stranger to the workings of the criminal justice system of police, prosecutors
and courts. He had several prior felony
convictions and had served prior prison terms.
It appears defendant’s cooperation was motivated by the dawning
realization that Braconi was not lying about the evidence against him, and his
own desire to do something to mitigate the consequences he was facing, rather
than by Braconi’s interview tactics.
Finally, defendant argues that his
admissions were involuntary because Sergeant Braconi “badgered†defendant about
the laptop when he was about to faint.
We disagree. Sergeant Braconi
testified that defendant did not appear ill.
In fact, defendant did not faint.
In the recording of the interview, defendant does not sound as if he is
being badgered, or as if he is about to faint.
We conclude defendant’s health was not an issue, and Sergeant Braconi
did not take advantage of a sick man.
Defendant’s admissions were
voluntary under the totality of the circumstances and the trial court did not
err in denying the defense motion to exclude them.
The judgment is affirmed.
>
__________________________________ Dondero, J. | |
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J. |
name="_ftn1" title=""> [1]
Unless otherwise indicated, all statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
After
discussing the type of gun used by the robber with her husband, Amy wrote in
her police statement that it was a Glock-type gun.
