P. v. Williams
Filed 8/3/12 P. v. Williams CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LIONEL WILLIAMS,
Defendant and Appellant.
D058809
(Super. Ct.
No. SCD217394)
APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Louis R. Hanoian, Judge. Affirmed.
A jury
convicted Lionel Williams of four counts of href="http://www.mcmillanlaw.com/">robbery and two counts of href="http://www.fearnotlaw.com/">attempted robbery. The jury also found true that Williams
personally used a deadly and dangerous weapon in the commission of the four
robberies and one of the attempted robberies.
Williams appeals, contending: (1)
the trial court erred when it failed to properly inquire into and evaluate the
prosecutor's reasons for excusing two African-American females from the jury
panel; (2) there was insufficient evidence to corroborate his accomplice's
testimony; (3) the court erred in denying his motion to sever the trial; and
(4) the trial court's admission of field identification evidence violated his
due process rights because the identification procedure was impermissibly
suggestive and unreliable. We find
Williams's arguments unavailing and affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
2007 Incidents
In May
2007, Williams was staying with his friend, Rodrigo Gaerlan, Sr., when he met
Ambrosio Penner. Penner had recently
obtained a blue and white Ford Bronco with a license plate identification of
"EMI«CAT." Williams asked Penner to drive him to commit
robberies. Penner initially refused, but
eventually agreed on June 2, 2007.
That same
evening, Penner picked Williams up and the two men went to a gas station where
Williams paid to put gas in the Bronco.
Williams then directed Penner to drive to La Jolla. After arriving in La Jolla,
Williams had Penner park and wait for his return. Williams was wearing glasses and dressed in
dark clothing, including a beanie and "hoodie."
Around 10:45 p.m., Stanley Seidle was walking around
his neighborhood in La Jolla when he heard a crackling
sound in the bushes. An African-American
man wearing a beanie and tortoise shell glasses then approached Seidle and
grabbed him by his coat. The man asked
Seidle, "Where's the wallet
Where's the wallet" Seidle
explained that he did not have a wallet and dropped his keys to demonstrate
that he was not holding anything. The
man then asked for the wallet again and pushed a gun against Seidle's chest. As Seidle repeated that he did not have
anything, the man patted him down. The
man then picked up Seidle's keys, threw them into the canyon next to the
street, and then walked away.
Around 11:00 p.m., Thomas and Quynh-Nga Bui Gredig
were walking to their car after leaving a friend's party in La Jolla. An African-American man wearing heavy
clothing and a hood or hat approached the couple, pointed a gun at Thomas and
said, "Give me your wallet."
After Thomas gave the man his wallet, the man moved toward Quynh-Nga. At that point, Quynh-Nga threw her purse into
the street. The man then told the couple
to run the other way. As the couple ran
away, Quynh-Nga saw the man pick up her purse and the couple saw a white truck
jump the median in the road.
After the
man left, the Gredigs returned to the area and found a beanie on the curb. DNA was later recovered from that beanie and
an analysis showed that Williams was a possible major contributor of the DNA
and Penner was excluded as a contributor.
Penner
testified that when Williams returned to his vehicle, Williams was missing his
beanie and breathing hard. Penner was
going the wrong way, so he made a U-turn over the center median and headed to
the freeway. Williams mentioned
something about throwing someone's keys and had a purse, wallet and cell phone
with him. While they were driving,
Williams looked through the items and then tossed them out of the window. A jogger later found some of Quynh-Nga's
property and the Gredigs recovered it from an exit off of the freeway.
When Penner
and Williams were on the freeway, Williams stated that he did not get enough
and convinced Penner to go to another location.
Williams instructed Penner to follow a car into a residential area. As the car they were following slowed down,
Penner passed it and parked in a location where they would not be seen. Williams got out of the vehicle and
disappeared from Penner's sight.
Between midnight and 1:00
a.m. on June 3, 2007,
Lydell Heard and his girlfriend, Jessica Vasquez, were driving home from a Jack
in the Box restaurant when they noticed a Ford Bronco with a license plate that
had a star in the middle and ended with "CAT." The Bronco was initially in front of Heard
and Vasquez, but then got behind them. When
Vasquez parked across from her house, the Bronco slowed down and then continued
down the street.
As Vasquez
and Heard gathered things from their car, an African-American man with a gun
approached them and demanded their wallets.
The man was wearing glasses and a dark jacket with a hood over his head. Vasquez gave the man her purse and Heard gave
him his wallet. After Vasquez and Heard
got out of their car, the man instructed them to walk down the hill. The couple went down to a neighbor's house
and hid behind some hedges. At that
point, they saw the same Bronco that they had seen earlier come down the hill.
Penner
testified that when Williams returned to his car, Williams had a purse and a
bag of fast food with him. Penner drove
away from the scene and headed to pick up his cousin, Rodrigo Gaerlan, Jr.
(R.J.), from a party. Penner picked R.J.
up and dropped both R.J. and Williams off at Gaerlan, Sr.'s home.
Penner was
arrested on June 4, 2007, while driving the Bronco. He later admitted that he and Williams were
involved in the robberies. Penner
pleaded guilty to four counts of robbery and entered into a href="http://www.mcmillanlaw.com/">cooperation agreement with the
prosecution.
Officers
searched Williams's residence on June 12, 2007.
They found multiple pairs of gloves, dark colored "hoodies,"
dark jeans, and multiple beanies. They
also found tortoise shell prescription glasses.
In Penner's Bronco, officers found a cell phone containing Williams's
phone number and reflecting a call to that number on June 2, 2007.
2008 Incident
On a night
in November 2008, Julie Leyden was returning to her home in Rancho Peñasquitos
when she heard a noise behind her as she stood at her front door. When she turned around, Leyden saw a man
crouched down wearing a dark hooded sweatshirt with stitching around it. The man grabbed at Leyden's handbag, which
got tangled in her shawl. When the man
could not get the handbag free, he pulled Leyden to the ground and dragged her
down the sidewalk. Leyden's purse opened
and its contents spilled out. Leyden
screamed and the man took off running.
Leyden called 911.
Officer
Dave Dunhoff responded to the call and headed north of Leyden's home. He saw a vehicle speeding away from the area
and conducted a traffic stop. Williams
was driving the vehicle, sweating profusely, and wearing clothing similar to
the reported robbery suspect. Williams
was nervous and told Officer Dunhoff that he had been sleeping in his car. Williams later changed his story and said he
pulled over because he was feeling sick.
Officer Dunhoff searched Williams's vehicle and found flashlights,
screwdrivers and a knit cap and gloves under the driver's seat.
Officer
Jose Oliveras transported Leyden to the location where other officers had
detained Williams in order to conduct a curbside identification. Officer Dunhoff presented Williams with the
hood of Williams's sweatshirt up and down.
Leyden responded by stating, "That's him. Oh, yeah.
I remember the white trimming on the sweat[shirt]. I'm sure that's him."
DISCUSSION
I. Alleged
Wheeler/Batson Error
A. Background
During the
voir dire proceedings, Prospective Juror No. 5 stated that she recently retired
after 30 years as a medical surgical nurse with Veterans Affairs. She also stated that she had two children,
one was a computer analyst and the other was a pharmacy assistant.
Prospective Juror No. 6 stated that
she worked for a private security company and had daily contact with
inmates. She also disclosed that her
sister-in-law was robbed while working at a dry cleaner and later that same
day, her sister-in-law was involved in a second incident when a man robbed the
restaurant where she was eating. No. 6
stated that she did not follow up regarding whether the robber was arrested in
either instance.
The
prosecutor used two of his peremptory challenges to excuse Prospective Juror
Nos. 5 and 6. Williams made a ">Batson motion," claiming
prosecutorial discrimination against African-American potential jurors. The court determined that Williams made a
prima facie showing of discrimination because Prospective Juror Nos. 5 and 6
were both African-American females.
The
prosecutor explained that he excused No. 5 because she was a nurse and he was
"not a fan of people in biotech or the nursing professions." He later elaborated, stating that
"nurses, scientists, [and] doctors . . . are all people that require, in
[his] experience, more proof than proof beyond a reasonable doubt in terms of
lay people." The prosecutor also
stated that he preferred another juror over No. 5 because the other juror, as
opposed to No. 5, was the victim of a robbery.
In regard
to Prospective Juror No. 6, the prosecutor stated that there were several
things that concerned him. Specifically,
the prosecutor explained that he excused No. 6 because: (1) it bothered him that she did not follow
up regarding her sister-in-law's robbery and was dismissive of it; (2) he did
not like her demeanor and attitude, including that she was opinionated and
interrupted the court; and (3) she worked with inmates every day.
After
hearing from both parties, the trial court denied Williams's motion, concluding
that there were "sufficient and numerous race-neutral reasons" for
the peremptory challenges. The trial
court also noted that the prosecutor consistently passed on two
African-American male prospective jurors.
B. Analysis
Williams
argues the trial court committed reversible error when it failed to properly
inquire into and evaluate his claim of Batson/Wheeler
error because the prosecutor's reasons for excusing two potential jurors who
were African-American females were not sufficient to rebut his prima facie
showing of discrimination and the court failed to make a sincere inquiry before
accepting those reasons for excusing the jurors. We disagree.
In People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), our Supreme Court " 'held that the use of peremptory challenges by a
prosecutor to strike prospective jurors on the basis of group membership
violates the right of a criminal defendant to trial by a jury drawn from a
representative cross-section of the community under article I, section 16, of
the California Constitution.
Subsequently, in Batson v.
Kentucky (1986) 476 U.S. 79, 84-89 [(Batson)]
. . . the United States Supreme Court held that such a practice violates, inter
alia, the defendant's right to equal protection of the laws under the
Fourteenth Amendment to the United States Constitution. African-Americans are a cognizable group for
purposes of both Wheeler [citation]
and Batson [citation].' [Citation.]" (People
v. Catlin (2001) 26 Cal.4th 81, 116-117; see also People v. Motton (1985) 39 Cal.3d 596, 605 [" '[B]lack women constitute a
"cognizable group." ' "].)
We presume that "a prosecutor
uses his peremptory challenges in a constitutional manner." (People
v. Alvarez (1996) 14 Cal.4th 155, 193 (Alvarez).)
The defendant bears the burden of
showing "prima facie, the presence of purposeful discrimination. [Citation.]" (Ibid.) To establish a prima facie case of group or
racial bias, a defendant must show a " 'strong likelihood' " of group rather than individual bias. (People
v. Howard (1992) 1 Cal.4th 1132, 1153-1154, italics omitted.) "Once a prima facie showing has been
made, the prosecutor then must carry the burden of showing that he or she had
genuine nondiscriminatory reasons for the challenges at issue." (People
v. Jenkins (2000) 22 Cal.4th 900, 993.)
A prosecutor's explanation for
exercising a peremptory challenge "need not rise to the level justifying
exercise of a challenge for cause."
(Batson, supra, 476 U.S. at p. 97.)
Such will be sufficient if it is genuine and neutral, even if
trivial. (People v. Arias (1996) 13 Cal.4th 92, 136 (Arias).) A " 'hunch' " about a prospective juror or an
arbitrary excusal may be a sufficient justification if it shows the prosecutor
exercised a peremptory challenge for reasons other than impermissible group
bias. (People v. Williams (1997) 16 Cal.4th 635, 664.) A prosecutor's perception of a prospective
juror's " ' "body language or manner
of answering questions" ' " may constitute a
sufficient nondiscriminatory reason. (>Arias, supra, at p. 136.)
Additionally, occupation can be a permissible, nondiscriminatory reason
for exercising a peremptory challenge.
(See People v. Trevino (1997)
55 Cal.App.4th 396, 411; People v. Landry
(1996) 49 Cal.App.4th 785, 790-791; People
v. Perez (1996) 48 Cal.App.4th 1310, 1315; People v. Barber (1988) 200 Cal.App.3d 378, 394.) If the prosecutor provides race-neutral
reasons, the trial court must then decide whether those reasons are untrue and
pretextual. (People v. Ayala (2000) 24 Cal.4th 243, 261; Alvarez, supra, 14
Cal.4th at pp. 196-197.)
In reviewing a trial court's
determination whether a prosecutor's neutral explanations for exercising
peremptory challenges are genuine and not a pretext for racial or other group
discrimination, we apply the substantial evidence standard of review. (People
v. Williams, supra, 16 Cal.4th at p. 666; Alvarez,
supra, 14 Cal.4th at pp.
196-198.) In doing so, we give
"great deference to the trial court's ability to distinguish bona fide
reasons for the exercise from sham excuses." (People
v. Hayes (1999) 21 Cal.4th 1211, 1284-1285.) If the trial court "makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to [such] deference on appeal. [Citation.]" (People
v. Burgener (2003) 29 Cal.4th 833, 864.)
" 'In such
circumstances, [we] will not reassess good faith by conducting [our] own
comparative juror analysis. Such an
approach would undermine the trial court's credibility determinations and would
discount " 'the
variety of [subjective] factors and considerations,' " including "prospective jurors' body
language or manner of answering questions," which legitimately inform a
trial lawyer's decision to exercise peremptory challenges.' [Citation.]" (People
v. Jackson (1996) 13 Cal.4th 1164, 1197.)
Moreover, the absence of express findings by the trial court does not
show it did not satisfy its obligation to make a " 'sincere and reasoned' " effort to evaluate the nondiscriminatory
reasons offered. (Id. at pp. 1197-1198.)
"Wheeler does not require
the trial court to conduct further inquiry into the prosecutor's race-neutral
explanations if . . . it is satisfied from its observations that any or all of
them are proper. [Citation.]" (Id
at p. 1198.)
Here, there
is substantial evidence to support the trial court's finding that the
prosecutor excused Prospective Juror Nos. 5 and 6 for race-neutral
reasons. In regard to No. 5, the
prosecutor expressed concern that she was a nurse because, in his experience,
people in that profession require "more proof than proof beyond a
reasonable doubt in terms of lay people."
Courts have found similar reasons to be race-neutral. (See, e.g., People v. Barber, supra,
200 Cal.App.3d at p. 394 [a juror was challenged because of profession based on
the prosecutor's belief that kindergarten teachers are often liberal and not
prosecution oriented]; People v. Granillo
(1987) 197 Cal.App.3d 110, 120, fn. 2 ["[m]any prosecutors believe various
professional people are unacceptable because they may be too demanding or they
look for certainty"].) In addition
to Prospective Juror No. 5's profession, the prosecutor in this case also
stated that he preferred another juror because that juror, as opposed to No. 5,
was the victim of a robbery. The
changing composition of a jury is a legitimate reason to exercise a peremptory
challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 918-919.)
With
respect to Prospective Juror No. 6, the prosecutor offered multiple reasons for
challenging her, including her dismissive attitude toward a robbery incident
involving her sister-in law, her demeanor and manner of answering questions,
and that she worked with inmates on a daily basis. A prosecutor's perception of a prospective
juror's "body language or manner of answering questions" may
constitute a sufficient nondiscriminatory reason for a peremptory
challenge. (Arias, supra, 13 Cal.4th
at p. 136.) The record supports the
prosecutor's claim that No. 6 interrupted the court while being questioned and
that she was somewhat dismissive of her sister-in-law's robbery. At one point, No. 6 even stated that she
thought that if she spoke fast, the court would not think to stop her. Further, the prosecutor could legitimately be
concerned about No. 6's daily contact with inmates because that could be viewed
as a factor potentially favoring the defense.
The prosecutor's stated reasons for
excusing Prospective Juror Nos. 5 and 6 were plausible and supported by the
record. That being so, the trial court
was not required to further inquire into the prosecutor's reasons. By personally observing the prosecutor's
demeanor in providing his explanations, the trial court presumably weighed the
prosecutor's veracity and determined whether his explanations, which were
supported by the record, were legitimate, race-neutral reasons for excusing
those jurors. The trial court was not
required to "cross-examine" the prosecutor to determine the veracity
of his explanations. Further questioning
of a reason is only required where the explanation is implausible or suggests
bias. (People v. Silva (2001) 25 Cal.4th 345, 386; People v. Hall (1983) 35 Cal.3d 161, 168-169.) Here, the prosecutor's reasons for exercising
his peremptory challenges to Prospective Juror Nos. 5 and 6 were reasonable and
did not suggest bias. Thus, we conclude
the trial court properly denied Williams's Batson/Wheeler
motion.
II. Sufficiency
of the Corroborating Evidence
Williams
argues there was insufficient evidence to corroborate Penner's testimony as
required by Penal Code section 1111. We
disagree.
A conviction cannot be based solely
on accomplice testimony without sufficient corroboration that "tend[s] to
connect the defendant with the commission of the offense." (Pen. Code, § 1111.) Evidence that sufficiently corroborates an
accomplice's testimony " ' "must tend to implicate
the defendant and therefore must relate to some act or fact which is an element
of the crime[,] but it is not necessary that the corroborative evidence be
sufficient in itself to establish every element of the offense charged . . .
." ' " (People
v. Zapien (1993) 4 Cal.4th 929, 982.)
The evidence necessary to corroborate accomplice testimony need only be
slight, such that it would be entitled to little consideration standing
alone. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) It is enough that the corroborative evidence
tends to connect defendant with the crime in a way that may reasonably satisfy
a jury that the accomplice is telling the truth. (Id.
at p. 535.) Corroborative evidence may
be entirely circumstantial. (>People v. Hayes, supra, 21 Cal.4th at p. 1271.)
When reviewing the issue of
corroboration of accomplice testimony, a court must eliminate the accomplice's
testimony from its consideration, and examine the remaining evidence to
determine whether there is evidence connecting the defendant to the crime. (People
v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) "If the sum total of all of the evidence
(other than the accomplice's testimony), connects the defendant to the
commission of the offense the requirements of Penal Code section 1111 are
satisfied." (People v. Manson (1977) 71 Cal.App.3d 1, 36.)
We apply a highly deferential
standard in reviewing the jury's finding of corroborating evidence. " ' "[U]nless
a reviewing court determines that the corroborating evidence should not have
been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the
finding of the trier of fact on the issue of corroboration may not be disturbed
on appeal." [Citation.]' [Citation.]" (People
v. Garcia (2001) 89 Cal.App.4th 1321, 1329-1330; accord >People v. McDermott (2002) 28 Cal.4th
946, 986.)
Applying these standards to the
case before us, we conclude the jury had a reasonable basis to find the
corroborating evidence connected Williams to the robberies. Apart from Penner's testimony, the testimony
of the victims and evidence found at the scenes of the robberies and Williams's
residence connected Williams to the crimes.
Seidle testified that the perpetrator was an African-American man
wearing tortoise shell glasses and a beanie.
Officers found similar items at Williams's residence. The Gredigs found a beanie when they returned
to the area where they were robbed. That
beanie had Williams's DNA on it.
Additionally, Thomas Gredig, Heard and Vasquez all testified that
although they were not positive that Williams was the perpetrator, Williams
resembled him.
Multiple witnesses also connected
Williams to the Bronco that was seen near the scenes of multiple crimes. After they were robbed, the Gredigs saw a
white truck jump the median in the road.
Heard and Vasquez also saw a Bronco with a license plate ending in
"CAT" just before and after they were robbed. R.J. confirmed that Williams was in the
Bronco with Penner on the night of the 2007 robberies.
Based on this evidence, Penner's
testimony was sufficiently corroborated.
The evidence was more than the necessary "slight"
corroboration to permit the jury to consider the accomplice's testimony. (People
v. Sanders, supra, 11 Cal.4th at
pp. 534-535.) The evidence linked
Williams to each of the offenses.
"It is sufficient if the corroborating
evidence tends to connect the defendant with the commission of the offense,
though if it stood alone it would be entitled to little weight." (People
v. Rice (1938) 29 Cal.App.2d 614, 619; accord, People v. Miller (2000) 81 Cal.App.4th 1427, 1442.)
Williams's reliance on >People v. Robinson (1964) 61 Cal.2d 373
(Robinson) and People v. Martinez (1982) 132 Cal.App.3d 119 (Martinez) is unpersuasive.
In Robinson, the defendant's
fingerprints were found in a car owned by his acquaintance and both were
charged with first degree murder. (>Robinson, supra, at p. 397.) It was undisputed that the defendant had
numerous opportunities to place his fingerprints on the vehicle under
circumstances that were unconnected to the crime. (Id.
at p. 399.) The prosecutor nonetheless
argued that the presence of the defendant's fingerprints in the car
corroborated an accomplice's testimony that the defendant participated in that
particular crime. (Id. at p. 398.)
The California Supreme Court
rejected this argument, reasoning that the fingerprints "merely placed
[the defendant] in the car at some time prior to the time the car was
discovered" and thus were insufficient to connect the defendant to the
crime. (Robinson, >supra, 61 Cal.2d at p. 400.) The court emphasized that to "hold that
the presence of those prints connects [the defendant] with the commission of
the crime is tantamount to saying that the fingerprints of any relative of a
person known to have committed a crime, found on the automobile of such person,
tend to connect the relative with the crime, even though it is known that the
relative has had the opportunity to be in and out of that car on various
occasions other than during the commission of the crime. Such a theory is unsound. Certainly association with a criminal is not
to be equated with connection with the crime." (Id.
at p. 399.)
In Martinez, the court found that there was insufficient corroborating
evidence when the testimony of an accomplice identifying the defendant as the
robber was supported only by one other witness who stated that defendant's
complexion was "exactly like" that of the robber. (Martinez,
supra, 132 Cal.App.3d at p.
133.) That witness, however, also
contradicted the accomplice by testifying that the robber had a beard. (Ibid.) Notably, in Martinez, the Attorney General conceded that there was no evidence
other than the accomplice testimony connecting the defendant with the
commission of the charged robberies. (>Id. at p. 132.)
Here, unlike Robinson, the corroboration evidence was not merely Williams's association
with the accomplice and, unlike Martinez,
more than one witness connected Williams to the offenses. In addition to Williams being in the Bronco
on the night of the crimes, at least three witnesses stated that a male of
Williams's general description was at the crime scenes and Williams's DNA was
found on a beanie near one of the robberies.
There was far more evidence in this case connecting Williams to the
offenses than the evidence linking the defendants in Martinez and Robinson to
their charged crimes. Thus, Williams's
reliance on those cases is misplaced, and we conclude there was sufficient
corroborating evidence to connect Williams to the crimes.
III.
Motion to Sever the Charges
A. Background
Prior to trial, Williams moved to
sever (1) the charges stemming from the 2007 robberies from the 2008 robbery,
and (2) the charges stemming from the robberies of the Gredigs from the
remaining 2007 incidents. Williams
argued the 2007 charges should be severed from the 2008 charges because of the
potential spillover effect of evidence from strong charges to weak ones and to
minimize the impact of evidence which might inflame the passions of
jurors. He also asserted that judicial
economy did not support joining the charges and due process and fair trial
considerations warranted the severance.
With respect to the robberies involving the Gredigs, Williams argued
they should be severed because jurors would be unable to compartmentalize the
DNA evidence found on the beanie recovered near the scene of the Gredigs'
robberies from the other charges.
The trial court denied the motion
on grounds that all of the charges were of the "same class," the
charges stemming from the 2007 incidents were connected together in their
commission in that they all occurred in one evening, the 2008 incident involved
the same mode and method as the 2007 incidents, evidence was cross-admissible,
and joinder was in the interest of judicial economy.
B. Analysis
Williams repeats the arguments he
made below on appeal. Specifically, he
contends it was unlikely that jurors could compartmentalize Leyden's
out-of-court identification of Williams and the DNA evidence found on the
beanie from the charges not involving that evidence. We disagree with his contentions.
Penal Code section 954 permits the
joinder of "two or more different offenses of the same class of crimes or
offenses." Williams concedes that
the offenses he was charged with are of the same class. Thus, the offenses meet the statutory
requirement for joinder under Penal Code section 954.
A trial court has discretion to
order that properly joined charges be tried separately (Pen. Code, § 954), but
there must be a "clear showing of prejudice to establish that the trial
court abused its discretion in denying the defendant's severance
motion." (People v. Mendoza (2000) 24 Cal.4th 130, 160.) In assessing a claimed abuse of discretion,
we assess the trial court's ruling by considering the record then before the
court. (People v. Soper (2009) 45 Cal.4th 759, 774; People v. Avila (2006) 38 Cal.4th 491, 575.)
Here, even assuming the evidence
was not cross-admissible, Williams has not shown prejudice or an abuse of
discretion. We do not see this as a case
where some of the charges were weaker than others. To the contrary, there was significant
evidence as to each crime (see >ante, part II) and there is no reason
why jurors could not assess the legitimacy and significance of Leyden's
identification and the DNA evidence without having that evidence impact their
assessment of the other charges. There
is nothing in the record that suggests the jury was confused or improperly
considered the evidence. Further, all of
the charges involved similar facts and a similar pattern of conduct. Thus, it cannot be said that one event was
more inflammatory than the other.
Accordingly, the trial court acted well within its discretion in denying
Williams's severance motion.
IV.
Admission of Field Identification
Evidence
Williams argues the trial court's
admission of evidence of Leyden's field identification of him violated his due
process rights. Specifically, he
contends the field identification procedures were unduly suggestive and
unreliable because Leyden did not identify him until the officers put a hood over
his head and had him assume a crouching position, only 45 minutes had elapsed
since the robbery, and an officer told Leyden that they had detained a suspect
in the area.
A pretrial identification procedure
violates due process only if it is so impermissibly suggestive that it creates
a "very substantial likelihood of irreparable
misidentification." (>People v. Contreras (1993) 17
Cal.App.4th 813, 819 (Contreras.) In determining whether the admission of
identification evidence violated Williams's due process rights, we must
consider (1) whether the identification procedure was unnecessary and unduly
suggestive, and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances. (People
v. Cunningham (2001) 25 Cal.4th 926, 989.)
Only if the answer to the first question is yes and the answer to the
second question is no is the identification constitutionally unreliable. (People
v. Ochoa (1998) 19 Cal.4th 353, 412.)
Williams bears the initial burden
of showing that the pretrial identification procedure was unduly suggestive and
unnecessary, such that its introduction resulted in unfairness that infringed
his due process rights. (People
v. Cooks (1983) 141 Cal.App.3d 224, 305.)
He must show unfairness as a " 'demonstrable reality,' " rather than mere speculation. (Contreras,
supra, 17 Cal.App.4th at p. 819.)
Here, there was conflicting
evidence regarding the field identification procedures. Leyden testified that she identified Williams
after she asked an officer to put Williams's hood partially over his face and
have him assume a crouching position.
However, Officer Dunhoff, who presented Williams at the curbside
identification, testified that he presented Williams with his hood up and down,
but Williams never got into a crouching position. The trial court ruled that the field
identification procedures were not unduly suggestive and unnecessary. In making its ruling, the court noted the
conflicting testimony, but concluded that "the more reliable testimony"
came from the officers as opposed to Leyden regarding the procedure used.
Williams has not identified any
procedures that rendered the field identification unduly suggestive or
unreliable. As the trial court noted,
the showup identification procedure utilized in this case was "a procedure
that is common with virtually every curbside lineup that occurs." Any suggestiveness that came from the
proximity in time of the lineup to the crime was "offset by the
reliability of an identification made while the events [were] fresh in the
witness's mind." (>In re Carlos M. (1990) 220 Cal.App.3d
372, 387.) Further, although officers
may have told Leyden that they had stopped someone that they wanted her to look
at, Leyden testified that officers never told her that Williams was the
assailant. Telling a witness that a
suspect is in custody is not impermissible in the context of identification
procedures. (Contreras, supra, 17
Cal.App.4th at p. 820.) Similarly, in
regard to Williams's hood being put over his head, it is not improper for an
officer preparing for a lineup to require a suspect to put back on the clothes
the suspect was wearing at the time of arrest and doing so does not render the
identification procedure unduly suggestive.
(People v. Floyd (1970) 1
Cal.3d 694, 713, disapproved on other grounds in Wheeler, supra, 22 Cal.3d
at p. 287, fn. 36.) Lastly, we are not
persuaded that Williams assumed a crouching position during the
identification. As we noted, there was
conflicting evidence in this regard and the trial court found the officers'
testimony was more credible than Leyden.
We will not disturb the trial court's credibility finding on
appeal. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In sum, we conclude Williams failed
to satisfy his burden of demonstrating that the field identification procedures
were unduly suggestive or unreliable.
Consequently, the trial court did not err in admitting evidence of the
identification.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.