P. v. Barron
Filed 2/7/12 P. v. Barron CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
GARY ESHAWN BARRON,
Defendant
and Appellant.
E052515
(Super.Ct.No.
FSB1001645)
OPINION
APPEAL
from the Superior Court
of
County. Harold T.
Wilson, Jr., Judge. Affirmed with
directions.
Alan
S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, and Lise S. Jacobson and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
Following
a jury trial, defendant Gary Eshawn Barron was convicted of one count of
and one count of elder abuse (§ 368, subd. (b)(1)). The jury found true the
pursuant to section 667.9, subd. (a).
Following a jury trial on the priors, the jury returned true findings as
to the allegations that defendant suffered a prior conviction of a serious or
violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had one
prison prior (§ 667.5, subd. (b)), and had one strike prior (§ 667,
subd. (a)(1)). Defendant was sentenced
to state prison for a total term of 13 years, consisting of the midterm of six
years on count 1 with an additional term of one year for the elder enhancement,
five years for the serious felony prior, and one year for the prison
prior. Defendant appeals, challenging
the admission of the victim’s infield identification, the exclusion of his
girlfriend’s testimony regarding the arresting officer’s prior arrest of
defendant, and the one-year prison prior enhancement.
I. FACTS
On
April 22, 2010, at
approximately 7:40 p.m., 72-year-old
Marianne Jacobs and her fiancé, Garry Hulderman, were entering their car in San
Bernardino County
when a man grabbed Jacobs’s purse from her shoulder, causing her to “g[e]t
slapped around†towards the car. Jacobs
watched the assailant run across Highland Avenue. She began to chase him, following him down
two alleys before losing sight of him.
When Jacobs stopped, she asked a repairman if he had seen anyone run
by. The repairman replied that he had
seen a male wearing red pants and a gray jacket.
Hulderman
saw a police car and flagged down Officer Robert Guenther. Jacobs told the officer that she had been
robbed by a Black male in his twenties, about six feet tall, wearing red pants
and a gray jacket.
title="">[2] The officer radioed information regarding the
incident, including a description of the robber and the stolen property, along
with the direction in which the suspect had fled. A search involving several police cars and a
police helicopter was initiated.
Officer
Guenther located a suspect matching Jacobs’s description inside Tom’s Burgers
on the corner of Mountain and Highland Avenues.
As Officer Guenther approached the restaurant, the suspect exited
through the opposite door. Officer
Robert Bellamy, who had been in the area when he heard the radioed information,
saw defendant, who matched the suspect’s description, exit Tom’s Burgers. As soon as defendant made eye contact with
Officer Bellamy, defendant started running.
Following
a chase and struggle involving the use of force, the officers were able to
handcuff defendant. Officer Guenther
returned to Jacobs about 10 to 15 minutes after he initially left her and took
her to where defendant was being held for an infield identification. Jacobs identified defendant, stating she was
110 percent sure that he was the robber.
Officer Bellamy retraced the chase route and located Jacobs’s purse in a
trash dumpster in the rear parking lot of Tom’s Burgers. About 10 minutes after the identification, an
officer returned Jacobs’s purse to her, but her cell phone and $18 in her
wallet were missing.
A
short time later, Officer Guenther called Jacobs’s cell phone. Officer Frank Macomber, who had allowed the
other officers to place defendant in the back of his unit, heard a cell phone
ring and searched the back of his patrol car where defendant had been
detained. The officer located the cell
phone “slightly shoved up underneath the right front passenger[] seat.†The cell phone was returned to Jacobs.
Defendant
was taken to Arrowhead Regional Medical Center for medical treatment and was
“medically cleared.†He had $68 in cash
on his person when he was booked into the jail.
In
defense, Amber Martin, defendant’s girlfriend, testified that Tom’s Burgers is
next door to their old residence and about a 15-minute drive from their current
residence. Defendant frequently visited
a friend who continued to live in their old neighborhood, and the bus stop was
across the street from Tom’s Burgers.
II. VICTIM’S INFIELD IDENTIFICATION
A. Additional Background Facts
In
a pretrial motion, defendant moved to exclude Jacobs’s out-of-court
identification of him on the grounds the out-of-court identification procedure
was unduly suggestive because the victim saw the robber only for a “split
second,†she was shown one Black male in handcuffs, he was likely sweating and
breathing heavily, and he was wearing clothing described to her by the
repairman. Defendant also argued that any
subsequent in-court identification would be tainted by the earlier
identification. In response, the
prosecution argued that the curbside lineup was proper, because it was close in
time to the robbery and the victim was certain of her identification once she
saw defendant. The prosecutor faulted
defendant for not requesting another lineup.
Further, he argued that even if the out-of-court identification was
suggestive, Jacob’s in-court identification would still be valid. The trial court denied the motion, ruling
that the infield identification was not overly suggestive.
After
trial, defendant filed a motion for new trial challenging, inter alia, the
admissibility of Jacobs’s identification of defendant. The trial court denied the motion.
On
appeal, defendant contends the trial court erred by not excluding Jacobs’s
out-of-court and in-court identifications of defendant, because the pretrial
identification was unduly suggestive and unnecessary.
B. Standard of Review
“We
independently review ‘a trial court’s ruling that a pretrial identification
procedure was not unduly suggestive.’
[Citation.]†(
698-699.)
“‘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.]â€
(People v. Avila,
identification procedure was so impermissibly suggestive that it creates a very
substantial likelihood of misidentification under the totality of the
circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989;
377, 384.) “‘In order to determine
whether the admission of identification evidence violates a defendant’s right
to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, 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 suspect at the time of the offense, the witness’s degree of
attention at the time of the offense, the accuracy of his or her prior
description of the suspect, the level of certainty demonstrated at the time of
the identification, and the lapse of time between the offense and the
identification.’ [Citation.]†(People
v. Kennedy (2005) 36 Cal.4th 595, 608, overruled on other grounds in
405, 459.)
C. Analysis
According
to defendant, “the suggestiveness of the [single person] show-up and the
absence of necessity†weigh in favor of exclusion of the identification evidence. Defendant points out that he was “handcuffed
and standing on the street surrounded by three or four officers after being
pulled from a patrol carâ€; that the showup was conducted “within an hour of the
robbery†and “near the robberyâ€; that while Jacobs stated she was ready for the
identification, she told the officer that “she did not think she could identify
her assailantâ€; and finally, although she never saw her assailant’s face,
Jacobs identified defendant as her assailant based on his general appearance. Furthermore, defendant argues that the showup
was unnecessary, because “neither [defendant] nor [Jacobs] were subject to
life- or consciousness-threatening conditions, and neither was likely to become
unavailable.â€
A
single person showup is not inherently unfair.
(People v. Ochoa (1998) 19
Cal.4th 353, 413.) Moreover, the fact
that the person was handcuffed does not automatically make the showup
inherently suggestive. (
372, 386; People v. Gomez (1976) 63
Cal.App.3d 328, 335-337.) Rather, each
case is assessed in light of the totality of the circumstances. (People
v. Cowger (1988) 202 Cal.App.3d 1066, 1071.) Here, Jacobs gave a detailed and accurate
description of the robber to the responding officer. In conducting the infield identification, the
officers did nothing to suggest that Jacobs identify defendant as the
robber. The officer read Jacobs the
“Detainee Admonishment Card,†which states that a subject has been detained
“who may or may not be involved in the crime,†and that there is no obligation
to identify anyone. Although Jacobs
indicated she would not be able to identify her assailant “by face,†she stated
she was “‘a hundred and ten percent’†sure of the identification. At trial, Jacobs explained that she had
recognized defendant as her assailant based on his clothing and stature.
Considering
the totality of the circumstances, Jacobs had the opportunity to observe her
assailant while she chased him across the street and down two alleys in “broad
daylight.â€
provided the officer with an accurate description of defendant’s gender,
ethnicity, height and clothing. The
infield identification was made within 30 minutes after the incident,
assailant. Although defendant claims
that Jacobs’s identification is unreliable because the repairman identified
defendant’s clothing, the People note that Jacobs testified
red pants and a gray sweater, and the repairman simply confirmed that he had
seen someone wearing the same clothing run by.
Regarding Jacobs’s statement to the 911 operator that she “didn’t see
him,†we agree with the People’s observation that such statement, when viewed
in the context of Jacobs’s testimony, merely meant “she did not see the
robber’s face during the ‘split second’ robbery, she only saw his clothing and
stature as he fled.†Although we agree with
defendant that there was no emergency situation requiring an infield
identification, we still conclude that Jacobs’s identification of defendant was
reliable and properly admitted.
D. Harmless Error
Notwithstanding
the above, for argument purposes, even if we assume the trial court erred in
admitting Jacobs’s identification of defendant as the robber, such error was
harmless. As the People aptly note, the
evidence pointing to defendant as being the robber was overwhelming. First, Jacobs’s description of the robber
that was given to the officer accurately described defendant, i.e., Black male
in his twenties, about six feet tall, wearing red pants and a gray jacket. Second, in a 911 call, a repairman who had
seen the robber flee also described clothing worn by defendant that night. Third, when officers saw defendant at a
restaurant in the area of the robbery, defendant took flight. Fourth, Jacobs’s purse was recovered from the
dumpster behind the restaurant where defendant was initially located by the
officers. Fifth, Jacobs’s cell phone was
located in the patrol car where defendant had been detained following his
arrest. And finally, defendant was in
possession of $68 in cash, including a $10 bill, $5 bill, and three $1 bills,
representing $18 that also happened to be missing from Jacobs’s wallet when it
was returned to her.
Given
the state of this evidence, any error in admitting Jacobs’s infield
identification of defendant as the robber was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Craig (1978) 86 Cal.App.3d 905, 914 [“A tainted pretrial
identification makes an in-court identification inadmissible unless it can be
shown the in-court identification had an origin independent of the pretrial
identification. [Citation.]â€];
73, 86 [error in admitting evidence of victim’s tainted in-court identification
was harmless given the “ample untainted highly probative evidence linking
defendant to the commission of the robberyâ€].)
III. EXCLUSION OF TESTIMONY OF DEFENDANT’S
GIRLFRIEND
A.
Additional Background Facts
Prior
to trial, the prosecution moved to exclude the testimony of defendant’s
girlfriend, Martin, regarding Officer Bellamy’s prior arrest of defendant for
domestic violence, on the grounds that the evidence was not relevant, was more
prejudicial than probative, and was unduly time consuming. Defense sought to admit the evidence to show
that Officer Bellamy and defendant had a “prior run-in.â€
At
the Evidence Code section 402 hearing, Martin testified that she had one prior
contact with Officer Bellamy in March 2009.
She explained that she was pregnant at the time. She and defendant were arguing, and when she
attempted to drive off, he walked to the passenger side of the car and tried to
“snatch [her] keys,†causing the two to have a “tug of war.†Officer Bellamy pulled up behind them in a
patrol car, got out, and told defendant to “[f]reeze.†The officer “told [defendant] to get
down . . . on his hands and knees before he shoots him.†The officer asked Martin if defendant was
trying to rob her, and she explained the situation. Officer Bellamy asked whether defendant had
hit her, and she said that he had not.
Upon running defendant’s name through the system, Officer Bellamy
learned that defendant was on parole.
Although Martin had told the officer that defendant did not commit any
crime, the officer arrested defendant for battery. On the advice of defendant’s parole officer,
Martin subsequently wrote a statement about what had happened, and defendant
was released a few days later. Defendant
appeared in court but learned the case was not on calendar because the district
attorney had never picked up the case.
According
to defense counsel, Martin’s testimony was relevant to establish that Officer
Bellamy was biased against defendant.
of proof that Officer Bellamy would testify that he believed he witnessed a
crime in progress when he saw defendant and Martin, either a purse snatching or
a domestic violence incident. Officer
Bellamy was the officer who chased and arrested defendant in the instant case
and found Jacobs’s purse in the dumpster.
The prosecutor argued that Martin’s proposed testimony was irrelevant
because one prior arrest did not establish that Officer Bellamy was biased or
did anything wrong in the case at bar.
Also, the prosecutor argued that the evidence would be time consuming
and confusing for the jury, because it would require testimony regarding the
facts of another incident involving defendant.
After
listening to argument, the court found that the
than probative. It explained that the
failure to file charges was up to the district attorney, and the jury should
not have to decide whether defendant’s arrest in the price incident was
valid. Rather, the issue was whether
defendant was the robber in this case.
Defense counsel argued that evidence of the prior incident was relevant
to explain why defendant ran from Officer Bellamy. The court agreed to allow defense counsel to
question the officer regarding his prior contact with defendant, but that
defense counsel could not get into the issue of whether there was a valid
arrest.
On
cross-examination, Officer Bellamy testified that he had prior contact with
defendant, but the officer denied telling defendant he hoped defendant goes to
prison, or that if he ever saw defendant on the street, he would “put 15 rounds
in him.†On redirect, the officer testified
that he did not have an “axe to grind†with defendant.
Following
his conviction, defendant moved for a new trial on the grounds that the trial
court erred in refusing to allow Martin’s testimony regarding defendant’s prior
arrest for purposes of showing that Officer Bellamy was biased. The motion was denied.
On
appeal, defendant contends, “[t]he trial court’s refusal to
allow . . . Martin to testify to the facts of a prior contact
between [defendant] and Officer Robert Bellamy limited defense counsel’s
ability to properly cross-examine the officer as to bias and, thus,
credibility.†He argues his rights to
confrontation, due process and a fair trial were violated and the People cannot
show that the trial court’s error in not allowing this impeaching evidence was
harmless beyond a reasonable doubt.
B. Standard of Review
Citing
numerous case authorities, defendant claims the exclusion of Martin’s
impeaching testimony violated his federal constitutional rights to
confrontation, due process, and a fair trial.
“A defendant has the general right to offer a defense through the
testimony of his or her witnesses [citation], but a state court’s application
of ordinary rules of evidence—including the rule stated in Evidence Code
section 352—generally does not infringe upon this right
[citations]. . . .
Although the high court in Chambers
[v. Mississippi (1973) 410 U.S. 284]
determined that the combination of state rules resulting in the exclusion of
crucial defense evidence constituted a denial of due process under the unusual
circumstances of the case before it, it did not question ‘the respect
traditionally accorded to the States in the establishment and implementation of
their own criminal trial rules and procedures.’
[Citation.]†(
82, overruled on other grounds as stated in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In
California, evidence possessing any tendency in reason to prove or disprove any
disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351.) The trial court is vested with wide
discretion in determining the relevancy of evidence. (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) “‘Exclusion of evidence as more prejudicial,
confusing or distracting than probative, under Evidence Code section 352, is
reviewed for abuse of discretion.’
[Citation.]†(
C. Analysis
Here,
the trial court acted within its discretion in excluding Martin’s testimony,
given the fact that its minimal probative value was outweighed by its
prejudicial effect. According to
defendant, “Officer Bellamy’s alleged behavior during the prior encounter with
[defendant] violated the duties of a sworn police officer. Rather than protect and serve, Officer
Bellamy’s actions suggest harassment.â€
Defendant argues that “the district attorney’s subsequent unwillingness
to pursue charges against [defendant] for the offenses alleged by Officer
Bellamy reveal his potential bias against [defendant] in the present case and
explain [defendant’s] fear of the officer’s involvement.†However, the fact that Officer Bellamy
arrested defendant on a prior occasion does not establish bias. Martin’s proposed testimony did not show any
wrongful conduct on the officer’s part, defendant never filed a formal
complaint against the officer, and the fact that the district attorney’s office
chose not to prosecute does not establish any wrongful conduct. Rather, it would have been prejudicial, time
consuming and confusing for the jury to determine the appropriateness of the
prior arrest. As the People point out,
besides the necessary detailed testimony regarding the circumstances, “it would
have required evidence regarding police policy and procedure when domestic
violence is suspected, evidence that [defendant] was on parole (one of the
reasons Officer Bellamy placed him under arrest) and evidence regarding the
District Attorney’s charging process (to show that the fact that the District
Attorney chose not to file charges did not necessarily establish that the
arrest was improper).†Given these
circumstances, the trial court did not abuse its discretion in excluding the
evidence under Evidence Code section 352.
Moreover,
exclusion of Martin’s testimony did not deprive defendant of his rights to
confrontation, due process or a fair trial.
In his defense, defendant, via cross-examination, asserted that he was
not the person who robbed Jacobs.
Defendant challenged the prosecution’s witnesses, calling into question
Jacobs’s identification of him as her assailant. Defendant also questioned whether Officer
Bellamy harbored ill feelings towards him by asking the officer if he had
previously told defendant he hoped defendant goes to prison, and that if he
ever saw defendant on the street, he would put 15 rounds in him.
D. Harmless Error
Even
if we were to find constitutional error, it would be harmless beyond a
reasonable doubt. Improperly denying a
defendant the opportunity to cross-examine an adverse witness on matters
reflecting on the witness’s credibility may be subject to the harmless error
standard set forth in Chapman v.
California, supra, 386 U.S. at p.
24; “‘[h]owever, not every restriction on a defendant’s desired method of
cross-examination is a constitutional violation. . . .’†(People
v. Chatman (2006) 38 Cal.4th 344, 372.)
“A trial court’s limitation on cross-examination pertaining to the
credibility of a witness does not violate the confrontation clause unless a
reasonable jury might have received a significantly different impression of the
witness’s credibility had the excluded cross-examination been permitted. [Citations.]â€
(People v. Quartermain (1997)
16 Cal.4th 600, 623-624.) Accordingly,
once we conclude, post, that there is
no reasonable probability that the admission of this evidence would have
changed the result, we must likewise conclude there was no
While
the circumstances surrounding Officer Bellamy’s prior contact with defendant
were excluded, defense counsel was allowed to question the officer concerning
prior statements allegedly made by the officer to defendant. Even if Martin had been allowed to testify
about the prior contact, there is no reasonable probability that the testimony
would have changed the result. First,
Martin had an obvious motive to lie, given the fact that defendant was her
boyfriend and the father of her child.
Second, the prior contact involved a possible domestic violence incident
where defendant took Martin’s keys while she was inside her car. Third, the jury would have also learned that
defendant was on parole at the time of the prior incident. Fourth, Officer Bellamy’s testimony was
independently corroborated. Fifth, the
overwhelming evidence identified defendant as the assailant. And, the most damaging evidence was Jacobs’s
cell phone being located in the patrol car where defendant had been detained.
Under
these circumstances, we perceive no reasonable probability that the admission
of evidence of Officer Bellamy’s prior contact with defendant would have led to
a more favorable result for defendant.
IV. PRISON PRIOR ENHANCEMENT
Defendant
contends, and the People concede, that the trial court erred in failing to
strike defendant’s one-year prison prior enhancement.
Section
667, subdivision (a)(1) provides for a consecutive enhancement of five years
when a prior conviction qualifies as a “serious felony.†Section 667.5, subdivision (b) provides for a
one-year enhancement if a prior conviction resulted in a prison sentence. In People
v. Jones (1993) 5 Cal.4th 1142, 1150 through 1153, the California Supreme
Court held that only the enhancement with the greater term of imprisonment can
be imposed when the same prior offense qualifies as a “serious felony†under
section 667, subdivision (a)(1), and resulted in a prior prison term under
section 667.5, subdivision (b). Here,
both the enhancements for the prior serious felony and the prior prison term
were based on defendant’s conviction for robbery on February 24, 2006. Thus, sentence could not legally be imposed
on both enhancements. The enhancement
carrying the lesser term must therefore be stricken.
V. DISPOSITION
The
matter is remanded to the trial court with directions to strike the one-year
enhancement imposed for defendant’s prior prison term. The trial court is directed to deliver a
certified copy of the corrected minute order and abstract of judgment to the
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] At trial, Jacobs denied telling the officer
the robber’s age, height or race.
