Opinion
NOT TO BE PUBLISHED
Superior Court No. KA081140 County of Los Angeles, Tia Fisher, Judge
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Armando James Barela appeals a judgment following his conviction for second degree murder (Pen. Code, § 187, subd. (a), 189) and possession of a firearm by a felon (§ 12021, subd. (a)(1)), with jury findings that he personally and intentionally discharged a firearm which proximately caused the death of the victim (§ 12022.53, subd. (d)). The trial court sentenced Barela to 30 years to life for second degree murder (15 years to life doubled because of a prior serious felony) (§ 667, subd. (b)-(e)(1)), a consecutive 25 years to life on the section 12022.53 finding, a consecutive five years for his conviction of a prior serious felony in case No. FRE04750 (§ 667, subd. (a)(1)), and a consecutive one-year prior prison term enhancement (§ 667.5, subd. (b)). It imposed a four-year concurrent sentence for his conviction of possession of a firearm by a felon. The court then stayed a prior prison term enhancement (§ 667.5, subd. (b)) under section 654 for the conviction in case No. FRE04750.
All statutory references are to the Penal Code.
We conclude, among other things, that: 1) the trial court did not err by admitting evidence about a field "show-up" identification, 2) its decision not to hold a pretrial evidentiary hearing on the reliability of the field identification procedure did not violate due process, 3) the court did not contravene the bar on multiple punishment (§ 654) by imposing the concurrent four-year sentence for possession of a firearm by a felon, 4) the prior prison term enhancement (§ 667.5, subd. (b)) for case No. FRE04750 must be stricken, and 5) the abstract of judgment must be corrected because it is incomplete and inaccurate.
We strike the prior prison term enhancement for case No. FRE04750, and we order the trial court to correct the abstract of judgment. In all other respects, we affirm.
FACTS
On the morning of September 13, 2007, Gerardo Guerra was on his patio when he heard three gun shots. He looked over the fence and saw Larry Hunnicutt laying face down. He saw another man who was standing near Hunnicutt. Hunnicutt was bleeding from bullet wounds to his arm and abdomen. He later died as a result of these multiple gunshot wounds. The man who was standing near Hunnicutt was wearing a blue shirt. He fled on a silver or gray bicycle.
Guerra's nephew called the police. Guerra got his bicycle and followed the man with the blue shirt for three blocks. Guerra stopped his pursuit because he was afraid the man he was chasing would shoot him.
Police Officer Jose Larraga promptly arrived at the scene and obtained a description of the assailant as a "male Hispanic" riding a bike and wearing blue clothing. He saw a man on a bicycle matching that description. Barela was riding a silver-colored bicycle. The police made a U-turn and followed him.
Larraga commanded Barela to stop, but he "kept pedaling." They activated the lights and the siren on the patrol vehicle, but Barela kept riding "[a]t a fast rate of speed." Barela rode through a park; the police followed him. As Barela rode near a construction site, Larraga got out of the police truck. He ran after Barela and temporarily lost sight of him. Larraga heard over the police radio that another police officer spotted Barela.
Larraga continued his pursuit through a parking lot and spotted Barela holding his bike behind a parked BMW automobile. He was a foot away from the trunk of that vehicle. Larraga detained him.
Police Officer Randall Randall conducted a search for weapons. He found a handgun in the rear wheel well of the BMW.
Robert Keil, a sheriff's department criminalist, testified that cartridge casings found at the scene of the shooting and a bullet taken from Hunnicutt's body were fired from the gun found in the wheel well of the BMW.
Police Officer Barry Dolgovin testified that he put Barela in a police car. Barela overhead one of the police officers say, "I found the gun." Barela responded, "I just bought the gun at Eleanor and Monterey. A male Hispanic sold me the gun and took off in a different direction from me. I know nothing about that gun being used in any crime."
In the defense case, Elizabeth Mosqueda testified that on the morning of September 13, 2007, she and Barela rode their bicycles together. They had an argument and went their separate ways. On cross-examination, she said that she had told an investigator that the last time she had seen Barela was "a few days to... a week prior to his arrest."
The Field Show-Up Identification Evidence
Police Officer Jorge Aleman drove Guerra to the parking lot where Barela had been detained by police. He gave Guerra a "field admonishment" about the responsibilities witnesses have before identifying a suspect. Aleman testified that he never told Guerra "we got the guy who did it" or "anything like that."
Guerra looked at Barela and said, "I can't make an identification" because "everything happened so fast." He said he could identify the bicycle and the color of the shirt.
At trial, Guerra initially testified that at the field show-up Aleman used the phrase "it was him." Later, on cross-examination, Barela's counsel asked Guerra, "You told Detective Shope at the police station that the police officer who drove you to that parking lot told you while you were seated in the patrol car it was him." Guerra responded, "That if it was him? I said I am not sure because I cannot see him well." When Guerra was asked at trial if he could identify Barela in the courtroom, he said he was "not very sure because everything went very fast...."
Detective Richard Shope interviewed Guerra at the police station. Guerra told him that the person he saw at the field show-up was the person at the crime scene. Shope said Guerra "based his identification on the bicycle and the clothing." Barela's counsel asked, "Mr. Guerra also made a statement that with reference to the field show up that the officer who took me there said it was him?" Shope responded, "I know that's come up before but I don't personally remember that statement."
DISCUSSION
I. Admitting Evidence Regarding the Field Identification
Barela contends the trial court committed reversible error by not holding an evidentiary hearing on his motion to exclude the field show-up identification evidence. He claims that admitting this evidence was prejudicial and contravened his due process rights. We disagree.
"[T]he propriety of the prompt in-the-field identification by an eyewitness has been upheld repeatedly by both state and federal decisions." (People v. Odom (1980) 108 Cal.App.3d 100, 110.) The determination of "whether the admission of identification evidence violates a defendant's right to due process" 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...." (People v. Johnson (1992) 3 Cal.4th 1183, 1216.) Identification evidence is constitutionally unreliable if the answer to the first question is yes and the answer to the second is no. (Ibid.) "Where a defendant claims the pretrial identification was unnecessarily suggestive, he must show it gave rise to a very substantial likelihood of irreparable misidentification." (People v. Odom, supra, 108 Cal.App.3d at p. 111.)
A. Waiver
Barela claims he properly moved the trial court to exclude the field identification evidence. The Attorney General responds that Barela did not preserve the issue of the alleged error of not holding a pretrial evidentiary hearing on the motion. The Attorney General is correct.
Before opening statements at trial, Barela's counsel orally moved the trial court "to exclude any field show-up identification" as a "violation of due process and impermissibly suggestive." He did not, however, expressly request the court to hold an evidentiary hearing. The court asked defense counsel whether Guerra was able to identify Barela. He responded, "No, I don't believe so."
The trial court raised the issue about whether there was a need for a pretrial evidentiary hearing on the motion. It asked counsel what evidence he wanted excluded. He made an offer of proof that Guerra said he recognized the color of the shirt and that Officer Aleman said "[t]his is the guy" at the field show-up. The court asked the prosecutor whether Aleman would appear at trial. The prosecutor said he would appear. The court then asked defense counsel, "What motion are you making... ? I need you to be as specific and clear as possible so I know what I need to rule on."
Barela's counsel did not respond. Instead, he and the prosecutor had an unreported discussion. There is no settled statement about what was said and what, if anything, was decided.
The trial court noted on the record: 1) Aleman could be cross-examined at trial, 2) it accepted the offer of proof that Aleman told Guerra "[t]his is the guy," 3) there was a transcript of Guerra's statements on this issue which, by stipulation, would be admissible evidence, and 4) the phrase "[t]his is the guy" did not appear to be "unconstitutionally suggestive," but its meaning and whether it was suggestive were issues for trial. The court then said, "Given that set of facts, I don't see that we really need to have a big full blown hearing.... That's my position on it. Anything further?"
Barela's counsel responded, "Yes. I did discuss the issue of the transcript with my client. My understanding is that we're willing to proceed with the trial at thistime." (Italics added.)
From this response the trial court could conclude that the defense agreed with its analysis and felt a pretrial evidentiary hearing was unnecessary. When the court requested Barela's counsel to specify what motion he was making, he did not respond. Had he disagreed with the court's conclusion that the matter should be resolved at trial, he should have made an objection and an offer of proof about the necessity for a pretrial hearing. Having not done so, and by stating the case should proceed to trial, he did not preserve this issue for appeal. (U.S. v. Olano (1993) 507 U.S. 725, 731.) He also is estopped from raising procedural error because his counsel implicitly approved the court's suggested procedure. (People v. Overby (2004) 124 Cal.App.4th 1237, 1245; In re Griffin (1967) 67 Cal.2d 343, 347.)
B. The Need for a Pretrial Evidentiary Hearing
Even on the merits, the result does not change. Barela contends the trial court contravened his federal constitutional rights by not holding a pretrial evidentiary hearing on the validity of the police identification procedures. He claims that allowing the jury to determine the trustworthiness of the identification evidence was reversible error. We disagree.
"[T]he Supreme Court has expressly held that, because cross-examination before the jury is generally sufficient to determine the trustworthiness of identification evidence, the due process clause of the Fourteenth Amendment does not invariably require a judicial determination on this issue outside the presence of the jury." (U.S. v. Muse (4th Cir. 1996) 83 F.3d 672, 675.)
California trial courts often hold pretrial hearings on identification evidence. "No California decision, however, has held that due process of law requires a hearing outside the presence of the jury in each and every case." (People v. Cooks (1983) 141 Cal.App.3d 224, 306-307.) The issues are whether the defendant received an appropriate factual determination on reliability of the evidence and whether the trial court abused its discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197; U.S. v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1462.)
Here the defense did not request an evidentiary hearing or specify any disputed facts that needed to be resolved pretrial. (People v.Garcia (2005) 134 Cal.App.4th 521, 540 [no abuse of discretion in deciding not to hold evidentiary hearing where there was an insufficient offer of proof showing need for the hearing].) The trial court concluded that counsel wanted it to rule on his brief offers of proof. It essentially accepted those offers, found that there was no "unconstitutionally suggestive identification procedure," but it allowed the issue to be revisited at trial. Barela now lists some disputed factual issues which he claims should have been resolved at a pretrial hearing. But he did not raise these issues in the trial court. "Failure to make an adequate offer of proof precludes consideration of the alleged error on appeal." (People v. Eid (1994) 31 Cal.App.4th 114, 126.) Given this record, there was no abuse of discretion.
In addition, the trial court's decision did not prevent Barela from receiving a constitutionally sufficient factual resolution on the reliability of the identification evidence. (Gregory-Bey v. Hanks (7th Cir. 2003) 332 F.3d 1036, 1049.) "It is the reliability of identification evidence that primarily determines its admissibility." (Ibid.) "As the Supreme Court has pointedly noted, 'the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence.' Watkins v. Sowders 449 U.S. 341, 347...." (Ibid.) "'[J]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.'" (Ibid.)
C. Suggestive Police Procedures
Moreover, a decision not to hold a pretrial hearing is not reversible error where: 1) the defense has an "opportunity to probe the reliability of the identification evidence on cross-examination" at trial (U.S. v. Davenport, supra, 753 F.2d at p. 1462; see also U.S. v. Daily (8th Cir. 2007) 488 F.3d 796, 802-803), and 2) the totality of the circumstances shows that the police procedures were not unconstitutionally suggestive. (People v. Johnson, supra, 3 Cal.4th at p. 1216.) That is the case here. Barela's counsel extensively cross-examined Guerra and Aleman at trial to probe the reliability of the identification evidence.
As to the second prong, "'[t]he defendant bears the burden of demonstrating the existence of an unreliable identification procedure.'" (People v. Gonzalez (2006) 38 Cal.4th 932, 942.) Barela has not met that burden. He contends the police told Guerra "[t]his is the guy" and he claims this remark is so suggestive that it requires exclusion of the field identification evidence. But there is strong evidence that this language was not used. Aleman denied using that phrase or any phrase analogous to it. In addition, a trier of fact could reasonably find that Guerra's testimony was not consistent. At one point on cross-examination, Barela's counsel asked Guerra if he told Detective Shope that Aleman used the phrase "it was him" at the field show-up. Instead of responding in the affirmative, Guerra answered with the phrase, "That if it was him?" That is substantially different from the phrase "it was him" or "[t]his is the guy." Moreover, Shope said he did not remember Guerra making the claim that Aleman used the phrase "it was him." The credibility of the witnesses was a matter for the trier of fact, and we must draw the factual inferences most favorable to the judgment.
Even assuming Aleman used that language, the result does not change. The phrase "[t]his is the guy" could mean three things: 1) that this is a person of interest, 2) this is the suspect, or 3) this is the person the police have determined to be the perpetrator. The third option crosses over the line of permissible remarks because it suggests to the witness that the police have already determined that they have the perpetrator in custody. (Foster v. California (1969) 394 U.S. 440, 443 [identification evidence constitutionally tainted after police repeatedly suggested to the witness that "[t]his is the man"].) Barela's argument would have greater weight if the alleged "[t]his is the guy" remark had been the only statement made by police before commencing the field identification.
But here the police gave Guerra a number of cautionary advisements that show that they did not intend the third option and the procedure they used was not unconstitutionally suggestive. Aleman testified that he told Guerra that "the person detained might not be the subject." He warned Guerra that he needed to be "positive" and told him, "We don't want to take the wrong person to jail." Guerra confirmed that the police told him not to make any quick identification unless he was positive that the suspect was the perpetrator. He testified, "[T]hey told me if I were not sure, to wait."
Aleman's statements did not encourage Guerra to make an identification. To the contrary, these advisements let Guerra know that the police did not want him to identify Barela unless he was positive. These procedures were not unconstitutionally suggestive. (People v. Boyer (2006) 38 Cal.4th 412, 477 [where appellate court may "independently conclude" that police did not taint eyewitness testimony, absence of pretrial evidentiary hearing is inconsequential].) Moreover, there was no danger of an "irreparable misidentification" (People v. Odom, supra, 108 Cal.App.3d at p. 111), because Guerra could not identify Barela in the field or at trial. (People v. Lewis (2006) 39 Cal.4th 970, 1028.)
Barela claims that by using the phrase "[t]his is the guy," the police were unfairly attempting to identify him as being "guilty." But this claim is not based on evidence in the record. Barela "must show unfairness as a demonstrable reality, not just speculation." (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.) His argument ignores the evidence about the cautionary advisements. Barela has not shown why the police would give Guerra a warning to be positive if their goal was to induce him to make the identification regardless of its reliability.
Barela suggests that the phrase "[t]his is the guy" automatically taints all identification evidence and he claims the only constitutionally acceptable remark by Aleman to Guerra would have been the phrase "this is the suspect." But that is not the case. We consider the totality of the circumstances in determining fairness, and we are not confined to review only the isolated use of one phrase. (People v. Johnson, supra, 3 Cal.4th at p. 1216.) Courts have found that a single phrase, similar to what Aleman is alleged to have said to Guerra, does not contravene a defendant's due process rights. (See People v. Ballard (1969) 1 Cal.App.3d 602, 605 [police's use of the phrase "[the] suspects 'fit the description'" does not render the subsequent witness identification "unfair or untrustworthy"].) From the totality of the circumstances, we conclude that the police conduct does not violate Barela's rights.
Moreover, Barela has not shown prejudice, and any error is harmless given the evidence produced at trial. (People v. Badgett (1995) 10 Cal.4th 330, 351-352.) Guerra's inability to identify Barela at the field show-up and at trial was evidence helpful to the defense. (People v. Lewis, supra, 39 Cal.4th at p. 1028.) Barela's counsel used it to argue reasonable doubt to the jury. The prosecution primarily utilized Guerra to establish certain facts about the shooting and to identify objects affiliated with the crime, such as the bicycle and the color of the perpetrator's shirt. They did not use him as a primary identification witness. They had other, more compelling evidence to identify Barela as the shooter. This evidence included the ballistics testimony, Barela's conduct after the shooting, his possession of the murder weapon, his attempt to hide it, and his highly incriminating statements to the police. Even the exclusion of the field identification evidence would not change the result because the prosecution's case was strong and the evidence of Barela's guilt is compelling.
Barela contends that the trial court contravened the prohibition against multiple punishment under Penal Code section 654 by sentencing him to a concurrent four-year term for possession of a firearm by a felon. We disagree.
Where possession of a firearm is only simultaneous and incidental to the primary offense, the ban on multiple punishment under section 654 applies. (People v.Jones (2002) 103 Cal.App.4th 1139, 1144.) "[M]ultiple punishment is improper where the evidence 'demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense...." (Ibid.) But where the defendant possesses the gun, before, during and after the shooting, the ban on multiple punishment does not apply, because the possession "'was not merely simultaneous'" with the shooting. (Id. at p. 1146.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v.Jones, supra, 103 Cal.App.4th at p. 1143.) "We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (Ibid.; People v. Holly (1976) 62 Cal.App.3d 797.)
Here Barela's act of possessing the gun after the shooting and while he attempted to evade police substantially increased the risk of harm for himself and the officers who pursued him. Guerra testified that he followed Barela for only three blocks because he was afraid Barela would shoot him. Officer Larraga testified that he drew his weapon during the police pursuit because Barela had "reached towards his waistband." The trial court could reasonably infer that the post-shooting possession of the gun was a dangerous separate offense. The offense of a felon possessing a firearm "'is committed the instant the felon in any way has a firearm within his control.'" (People v. Jones, supra, 103 Cal.App.4th at pp. 1145-1146.)
III. The Section 667.5, Subdivision (b) Enhancement
Barela and the Attorney General claim the trial court erred by imposing and staying the one-year prior prison term enhancement (§ 667.5, subd. (b)) for Barela's prior felony conviction in case No. FRE04750. They are correct.
The trial court utilized the prior felony conviction in case No. FRE04750 to impose a consecutive five-year enhancement under section 667, subdivision (a). Consequently, it could not use that same prior felony to impose the one-year enhancement under section 667.5, subdivision (b). (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562; People v. Jones (1993) 5 Cal.4th 1142, 1150.) The section 667.5, subdivision (b) enhancement for case No. FRE04750 must be stricken. (Jones, at p. 1153.)
IV. The Abstract of Judgment
The Attorney General claims that the abstract of judgment must be corrected because it does not conform to the sentence the trial court imposed. He is correct.
The abstract lists Barela's second degree murder conviction, but it does not include the sentence that the court imposed for that offense, and it is otherwise incomplete. The abstract must be consistent with the sentence the trial court imposed. It "'"cannot add to or modify the judgment which it purports to digest or summarize."'" (People v. Hong (1998) 64 Cal.App.4th 1071, 1075.)
The section 667.5, subdivision (b) enhancement for case No. FRE04750 is stricken. The trial court on remand shall correct the abstract of judgment to conform to the sentence. In all other respects, the judgment is affirmed.
We concur: YEGAN, J. PERREN, J.