P. v. Bassett
Filed 9/13/13 P. v. Bassett CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
and Respondent,
and Appellant.
A134920
(
Super. Ct. No. 21585202)
The
San Francisco District Attorney charged Raymond D. Bassett and an accomplice
with second degree robbery. (Pen. Code, § 211.) Bassett was alleged to have robbed his victim
of an iPhone. Shortly after the crime
occurred, the victim identified Bassett as one of the perpetrators during a
“cold show.â€
title="">[1] A jury later found Bassett guilty of the
charge, and after a bifurcated trial, the court found true allegations of a
prior serious felony conviction and a prior strike conviction within the
meaning of Penal Code sections 667, subdivisions (a)(1), (d), and
(e), 1170.12, subdivisions (b) and (c). Bassett was sentenced to eight years in prison
and filed a timely notice of appeal.
In
this court, Bassett raises a single issue.
He contends the victim’s field identification of him was the result of
an identification procedure so impermissibly suggestive that it gave rise to a
very substantial likelihood of irreparable misidentification. He argues the trial court committed
identification. We find this argument
unpersuasive and will therefore affirm.
Factual and
Procedural Background
Bassett
moved in limine for a ruling on the admissibility of the victim’s field identification.
He contended there was “evidence that
the complaining witness was fed a description of Mr. Bassett prior to the cold
show,†which “created an identification procedure that was ‘so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.’ Simmons v. United States (1968) 390 U.S.
377, 384[.]†The trial court held a
hearing pursuant to Evidence Code section 402 at which the victim and several
police officers testified.
The
victim, sixteen-year-old D.M., testified he was “mugged at a bus stop†on May 25, 2011, at approximately 4:45 p.m. D.M. explained he had been mugged by three men. After he was mugged, he walked to a nearby
corner store and called 911. He was
rattled and very nervous when he spoke to the 911 operator and did not think he
could give a description.
name="_ftnref2" title="">[2] He told the operator there had been a man to
his right wearing a black hoodie and a white T-shirt. D.M. said there was a second man who was “a
taller, bigger guy†with short dreadlocks standing in front of him, and a third
man on his left who actually took D.M.’s iPhone. He recalled the least about the man on his
left, but remembered he was wearing an item of red clothing.
The
man with the dreadlocks stood directly in front of D.M. during the robbery. He was a black male, and his dreadlocks were
short and stopped at the man’s ears.
D.M. did not remember if the man had facial hair. D.M. recalled telling the 911 operator that
the man with dreadlocks wore a hoodie and a beanie.
Officer
Kevin Byrne responded to a dispatch concerning a robbery at the corner of Van
Ness and Clay. He and his partner
Officer Coleman made contact with D.M. and asked him questions about the
incident. After a brief interview with D.M.,
Officers Byrne and Coleman searched the surrounding area looking for
suspects. Officer Steven Needham called
on the radio and asked how long ago the incident had occurred. Byrne spoke to D.M. again, who told him the
incident had happened five to ten minutes earlier. Officer Needham then asked whether one of the
men was wearing a white T-shirt under a black T-shirt. D.M. said the man wore a white T-shirt under
a black hoodie.
Officer
Needham testified he stopped at an intersection on the afternoon of May 25, 2011, when he saw Bassett
walking with two other men. Needham
watched the men for five to ten seconds, and then sent a radio transmission to
Officer Byrne, one the officers who was with D.M. Needham
had Byrne ask D.M. if one of the men was heavy-set with dreadlocks, wearing a
black T-shirt with a long white T-shirt underneath it. After a pause, Byrne radioed back and said
the descriptions matched.
At
some point, D.M. was asked to identify three individuals. The police took him to identify the people
they had picked up. Before D.M. was
taken from the corner store to identify any suspects, the police had him read
and sign a San Francisco Police Department Cold Show Admonition and Report form.
The form stated that he might or might
not see the culprits, that he should not assume that the people he would see
were the ones who committed the crime, and that he did not have to identify
anyone. A police officer read the form
to D.M. aloud. He was asked whether he
understood what it meant, and he said he did.
The
officers then drove D.M. to view three people.
D.M. did not remember hearing radio conversations between officers while
they drove. He identified two of the
people as the men who robbed him. He
testified that his identification of the two people who robbed him was based on
his own personal recollection of the incident.
After
he made the identifications, D.M. was taken to the police station where he had
a further conversation with the police officers. There, he was told the police had apprehended
two of the three men who robbed him, and that a third man, whom D.M. had been
unable to identify, had left.
When
the testimony at the hearing on the motion
in limine concluded, the court heard argument from counsel. Defense counsel pointed out that D.M. could
not describe the robbers when he spoke with 911. She contended that while D.M. was in the
police car, Officer Needham called
on the radio with a “description that did not comport with the original
description given by [D.M.],†in that it did not mention a white T-shirt. D.M. was asked whether one of the robbers
wore a long white T-shirt and a black T-shirt, and he answered yes. D.M. then identified Bassett, who was wearing
clothes that, counsel argued, he had heard described over a police radio. Defense counsel asserted that the cold show identification
procedure was suggestive and should be excluded because D.M. was “fed†the
description of the robber by the police before he was asked to identify him. She argued the procedure was suggestive
because “[w]e have one individual with dreadlocks . . . who is being
shown by a police officer after having been described by another police officer
to this young, frightened child, who says he’s never had anything . . .
like this happen to him before.†Counsel
concluded by saying that allowing D.M. to make an in-court identification when
he had no recollection of what the defendant looked like would “make[] a
mockery of justice.â€
The
prosecutor argued the defense had failed to show there was a substantial likelihood
of misidentification because the police admonished D.M. before the field
identification that he did not have to identify anyone, and that the people he
was going to see might or might not be the perpetrators. The prosecutor disputed the argument that
D.M. had gotten his description of Bassett from overhearing police radio
communications, noting the victim had testified credibly that he did not
remember hearing any such conversations between the officers while they drove around
looking for suspects. Most importantly,
D.M. “testified that his identification at that cold show was based on his own
personal recollection of the robbery, not on anything that anybody told him
before the ID.â€
In
rebuttal, defense counsel expressed her belief that D.M. was being “absolutely
truthful in all respects.†The problem,
in her view, was that D.M. did not recall hearing the radio transmission which
planted the description in his mind and was thus unaware of its effects on
him. In response to the trial court’s
comment that she was asking it to “base a ruling on a state of mind of a
declarant he can’t even remember,†counsel countered that she was asking the
court to rule based on the police officers’ testimony that they had relayed a
description of Bassett to D.M. D.M. had
then “internalized these [questions] into the identification and does not
remember them coming from outside.â€
The
trial court denied the motion.
Discussion
Basset
contends the suggestive identification violated his rights under the due
process clause of the Fourteenth Amendment. He argues the identification procedures were
unduly suggestive and unnecessary and that D.M.’s identification of him at the
cold show and during trial were not reliable.
applicable law, we conclude the identification procedure was not unduly
suggestive.
I.
“It
is well established that convictions based on eyewitness identification at
trial, after a pretrial identification, constitute a denial of due process only
if the pretrial identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification. [Citations .]
A court must review the ‘totality of the circumstances’ in order to
determine whether due process has been violated. [Citations.] . . . [¶] Where the challenge is to the fairness of the
pretrial identification the burden is upon the defendant to show that it was
suggestive or unfair. [Citations.] If the defendant sustains his burden of
showing the pretrial identification was suggestive, the in-court identification
need not necessarily be excluded if the People can demonstrate that the
in-court identification was otherwise reliable.
[Citation.]†(
316, 322-323 (Johnson).) The defendant must show the unfairness of the
confrontation as a demonstrable reality, not simply speculation. (In re
Carlos M. (1990) 220 Cal.App.3d 372, 386 (Carlos M.).)
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.†(People
v. Cunningham (2001) 25 Cal.4th 926, 989.)
Our review of the trial court’s factual findings is deferential,
particularly when those findings turn on credibility determinations. (People
v. Alexander (2010) 49 Cal.4th 846, 902.)
We determine de novo whether, under the facts found, the pretrial
identification procedure was unduly suggestive.
(Ibid.) “‘Only if the challenged identification
procedure is unnecessarily suggestive is it necessary to determine the
reliability of the resulting identification.’
[Citation.]†(
II.
Not Unnecessarily Suggestive.
In
this case, D.M. identified Bassett at a single-person showup. Such a procedure “is not necessarily unfair
and must be assessed in the light of the totality of the circumstances. [Citation.] One of the justifications for a showup is the
need to exclude from consideration innocent persons so that the police may
continue the search for the suspect while it is reasonably likely he is still
in the area. [Citation.]†(Johnson,
supra, 210 Cal.App.3d at p. 323; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 [single person showup
not inherently unfair].) “An innocent
person who has been apprehended should not have to wait for the assembly of a
lineup and the summoning of counsel while the real culprit puts more time, and
presumably distance, between himself and the focal point of the offense.†(People
v. Cowger (1988) 202 Cal.App.3d 1066, 1072.) Moreover, “the law favors field identification
measures when in close proximity in time and place to the scene of the crime,
with the rationale for the rule being stated: ‘The potential unfairness in such
suggestiveness, however, is offset by the likelihood that a prompt
identification within a short time after the commission of the crime will be
more accurate than a belated identification days or weeks later.’†(In re
Richard W. (1979) 91 Cal.App.3d 960, 970.)
Bassett
has failed to meet his burden of demonstrating that the circumstances of the
cold show were unduly suggestive. (
p. 386.) His principal argument is
that D.M.’s young age made him particularly susceptible to altering his
descriptions of the robbers based on “the suggestions directed at him by the
officers who interviewed him and the other officers whose comments were audible
over the radios.†First, we note there
was no evidence presented below that a 16-year-old is particularly susceptible
to the kind of suggestion Bassett claims occurred. Since we must review the trial court’s ruling
based on the record before it at the time of its ruling, and no such evidence
was before the trial court, we have no basis on which to evaluate this
argument. (People v. Torres, supra, 188 Cal.App.4th at p. 780.)
Second,
Bassett’s argument is based in large part on the notion that D.M. heard the
police radio conversations that allegedly suggested a particular description to
him. As discussed above, however, D.M.
was asked whether he had heard those transmissions, and he testified
specifically he did not recall hearing them.
The trial court appears to have believed this testimony, and it was its
function to resolve any conflicts in the facts and assess D.M.’s credibility. (In re
Richard W., supra, 91 Cal.App.3d at p. 971.) Thus, Bassett’s contention “is both purely
speculative and contrary to the record,†and such speculation will not support
a claim that the identification procedure was unduly suggestive. (Carlos
M., supra, 220 Cal.App.3d at p. 386.)
Bassett
relies on the fact that D.M. initially told the 911 dispatcher that he couldn’t
identify any of the individuals he saw at the bus stop. Although D.M. did make this statement, it is
also true that he told the 911 operator that the man he later identified as
appellant had short dreadlocks. Even
though he was shaken in the immediate aftermath of the robbery, D.M. was still
able to remember Bassett’s distinctive hairstyle. Moreover, D.M. testified that at the time he
made the 911 call he was “really, really nervous†but that “as time passed, the
descriptions came back to [him]†when he was questioned by the police. While Bassett focuses heavily on D.M.’s
initial failure to mention that the person who stood in front of him was
wearing a white T-shirt, the omission of this descriptor does not alone
demonstrate that the identification procedure was unduly suggestive. (Cf. Carlos
M., supra, 220 Cal.App.3d at p. 387 [victim’s description of attacker
was accurate despite being wrong as to type of pants he was wearing].)
It
is also significant that D.M. was admonished that merely because the
individuals he was shown were detained by the police, that did not mean they
had committed a crime. D.M. understood
he did not have to make any identification at all. And in fact, although D.M. recalled that one
of the robbers wore a red item of clothing, he did not identify the third
suspect, who was also detained, handcuffed, and wearing a red shirt. These facts are similar to those of
where during a field identification, the victim of the crime was shown two
suspects together. (Id. at p. 386.) She had
earlier positively identified one of two suspects but did not identify the
other. (Ibid.) The court held this
showed the victim’s ability to distinguish between people she recognized and
those she did not. (Ibid.) Likewise, D.M.’s
failure to identify the third suspect indicates he was not influenced by the
circumstances of the cold show procedure.
(See ibid. [fact that victim
was shown a recognized attacker with a companion did not cause her to assume
companion was also involved in crime].)
Bassett
also complains that after the cold show identifications took place, D.M. was
taken to the police station and interviewed again, at which time he “was told
that the officers had arrested two of the men who robbed him.†Of course, this could not have influenced
D.M.’s field identifications, since
they occurred before any conversation at the police station. (See Johnson,
supra, 210 Cal.App.3d at p. 323 [officer’s statement that defendant
was an escapee could not have prompted pretrial identification because
identification occurred a half hour prior to statement].) Furthermore, Bassett’s contention that D.M.’s
in-court identification was tainted because the officers had confirmed the
correctness of the field identification is unsupported by any citation to the
record of the Evidence Code section 402 hearing. Bassett points to nothing in the record
suggesting that the police specifically told D.M. that Bassett was one of the men they had arrested. D.M. himself testified only that the police
officers told him “they had gotten two of the guys[.]â€
In
sum, Bassett has not shown that “the pretrial identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.†(
p. 322.) Substantial evidence
supports the trial court’s denial of Bassett’s motion in limine.
at p. 323.)
Disposition
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham,
J.
_________________________
Bruiniers, J.
show†in this context refers to a field identification procedure in which the
victim of crime is taken to view a person detained by police to determine
whether or not the person committed the crime.
that when he was subsequently interviewed by the police, the descriptions of
the men “came back†to him.
