Opinion
A145003
11-02-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN A. BUGGS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 172963)
Lester Young was fatally shot by a man who came to the front door of a friend's home where Young was staying. Two eyewitnesses identified appellant Steven A. Buggs, who knew Young, as the shooter. Following a jury trial at which he presented a defense of mistaken identity, appellant was convicted of first degree murder and was found to have personally and intentionally discharged a firearm in the commission of that offense, causing great bodily injury and death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The court found recidivist allegations to be true in a bifurcated proceeding (Pen. Code, §§ 667, subd. (a)(1), 667.5, subds. (b) & (c), 1170.12), and appellant was sentenced to prison for 75 years to life plus seven years.
Appellant contends the judgment must be reversed in its entirety because (1) the prosecution's failure to preserve a video recording of a photographic lineup at which appellant was identified by an eyewitness violated his rights under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood); (2) the court should have excluded the identification of appellant by a second eyewitness as the product of an unduly suggestive identification procedure; (3) CALJIC No. 2.92 was erroneous to the extent it allowed the jury to consider the "certainty" of an eyewitness's identification when evaluating the witness's reliability; (4) the court erroneously allowed the prosecution to present evidence of an altercation between appellant and the victim about a month before the shooting; (5) the court erroneously allowed the prosecution to elicit evidence that appellant was on parole for attempted murder when he was arrested in this case; and (6) the errors were cumulatively prejudicial. We affirm.
BACKGROUND
Crystal Hendrix is the mother of appellant's teenage son and has known the victim in this case, Lester Young, for many years. Young and appellant had also known each other for a number of years. In approximately August 2012, Young and appellant had a fistfight while on a fishing trip with Hendrix. This was the only time Hendrix knew them to be physical with one another and there did not seem to be any lasting animosity between them. According to Hendrix, appellant was concerned about Young after the fight and the two men remained friends.
In September 2012, Young was staying at the home of his friend Shaka Fagans, on Commerce Way in Oakland. Fagans's thirteen-year-old son, F.J., stayed at the home on weekends and was close to Young, whom he regarded as an uncle. On September 21, 2012, Fagans's girlfriend Natosha Beal came to the house and Young, who seemed intoxicated and angry, asked to use her cell phone. This lead Beal to believe Young did not have his own phone. Beal left Fagans's house at about 3:30 p.m.
Cell phone records showed that later that afternoon, appellant's cell phone and Young's were travelling together from Castro Valley (where appellant was staying with a friend of Hendrix's) to Oakland, before being powered off at 6:23 p.m. Appellant's cell phone was powered on at 6:59 p.m., but Young's phone was never turned on again.
Brian Duarte was a neighbor of Fagans's on Commerce Way, and saw a man park a silver Ford SUV and approach Fagans's house at 6:45 p.m. Duarte made eye contact with the man, whom he later identified as appellant, from a distance of 15 to 20 feet.
F.J. heard a loud knock and went to answer the front door, but Young, who appeared concerned, stopped him and said, "Wait, let me get it." The door opened quickly and a man entered and shot Young once. F.J. took shelter behind a couch and saw the man stand over Young and shoot him three more times. Young died of multiple gunshot wounds to his face, neck and torso.
Duarte heard the gunshots and watched appellant run back to the SUV and drive away. He and another neighbor memorized the license plate and reported the number and a description of the vehicle to the police. The license number matched a Ford SUV registered to Erdis Lee Powell, who was also known as Richard Blockman.
On the night of the shooting on September 21, 2012, Oakland Police Department Officer Phong Tran interviewed F.J. and conducted a video recorded photographic "six-pack" lineup at the police station as F.J.'s parents observed from another room. F.J.'s mother was very concerned about her son's involvement in the investigation. F.J. did not trust the police and was worried about being labeled an informer so he falsely told police he did not get a good look at the shooter.
The photographic lineup shown to F.J. on September 21 included a photograph of Powell/Brockman, the registered owner of the Ford SUV, but did not include a photograph of appellant, who had not yet become a person of interest. F.J. eliminated four people as possible suspects and indicated the remaining two looked like the shooter. After the video camera was turned off, F.J. told Officer Tran he had seen one person who looked a lot like the shooter but had not wanted his parents to see him make the identification; he identified Powell/Blockman, from one of the two remaining photographs, as the shooter. F.J. testified at trial that he knew the photograph he identified was not actually the shooter, but he made a false identification because he thought that would discourage the police from interviewing him further.
Also on September 21, 2012, Duarte was interviewed and was shown a photographic lineup containing the same pictures as had been shown to F.J., i.e., one which included a photograph of Blockman/Powell. Duarte was "pretty adamant" the shooter was not one of the men in the photographs.
Sometime after he completed the first photographic lineup, F.J. said something to his father, Fagans, that led Fagans to believe F.J. had lied when he identified one of the subjects in the photographic lineup as the shooter. Fagans obtained a photograph of appellant from Young's brother and showed it to F.J., who jumped back and said, "That's the guy that shot Les."
Fagans knew appellant because they had mutual friends in the 1990's or early 2000's.
On September 25, 2012, the police became aware of appellant's possible involvement in the shooting through a confidential informant. They located a photograph in the traffic camera system showing appellant driving the Ford SUV a few weeks before the shooting. The following day, September 26, 2012, Duarte was shown a new photographic lineup and identified appellant with the caveat that the man in the picture looked younger than the shooter. Duarte was confident he would be able to identify the shooter if he saw him in person.
Appellant was arrested on October 3, 2012, and Fagans and F.J. became more cooperative with law enforcement. Fagans gave Officer Tran the photograph of appellant that he had shown to F.J. Officer Tran conducted a physical lineup on October 10, 2012, that included appellant, and F.J. identified appellant as the shooter. Duarte was shown a video recording of the physical lineup on October 15, 2012, and also identified appellant as the shooter.
It was ultimately discovered that appellant had paid insurance on the Ford SUV driven by the shooter (even though the vehicle was registered to Powell/Blockman). Appellant's daughter was one of the SUV's occupants when a traffic stop of the vehicle was made on September 30, 2012. A key that operated the SUV was found when police later executed a search warrant on Crystal Hendrix's home.
Appellant presented a mistaken identity defense at trial and challenged the lineups conducted during the investigation as unduly suggestive. The defense called experimental psychologist Kathy Pezdek, Ph.D., as an expert in eyewitness identification, who questioned the reliability and accuracy of the identifications made by F.J. and Duarte.
DISCUSSION
1. Trombetta/Youngblood
Duarte's identification of appellant during the September 26, 2012, photographic lineup was recorded on videotape. When it was discovered that the tape was missing from the discovery packet provided to the defense, appellant filed a motion to dismiss the case or impose sanctions for the failure to preserve "exculpatory" evidence pursuant to Trombetta, supra, 467 U.S. 479 and Youngblood, supra, 488 U.S. 51, on the theory the tape would have shown that the procedure used to procure the identification by Duarte was unduly suggestive. Appellant argues the trial court erred in denying the motion. We disagree.
The United States Supreme Court has held law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence "that might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S. at p. 488.) To fall within the scope of this duty, the evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, at p. 489.) It is the defendant's burden to establish that evidence had exculpatory value. (People v. Alexander (2010) 49 Cal.4th 846, 878.)
The state's responsibility is further limited when the defendant's challenge is to "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." (Youngblood, supra, 488 U .S. at p. 57.) In such cases, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58.) We review a trial court ruling on a Trombetta/Youngblood motion for substantial evidence. (People v. Montes (2014) 58 Cal.4th 809, 837.)
At the hearing on the Trombetta/Youngblood motion, Tran testified that although he did not specifically recall having done so, his general practice would have been to record the photographic lineup and download the recording to a disc. When he was notified the disc was missing from the discovery in this case, Tran attempted to recover the original recording from the computer server where it should have been stored, but the server had reached maximum storage capacity and it was not possible to obtain a copy.
The trial court denied the motion, stating the defense had failed to demonstrate that the missing evidence was material or that the prosecution had acted in bad faith. Substantial evidence supports this ruling. The recording of the photographic lineup did not have apparent exculpatory value because in it, Duarte identified appellant as the suspect. To the extent the defense might have used the tape to argue that the identification procedure used was unduly suggestive, "the mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial does not establish materiality in the constitutional sense." (People v. Von Villas (1992) 10 Cal.App.4th 201, 241.) The defense was able to cross-examine Tran about the techniques used during the lineup, and the absence of the tape did not deny appellant the opportunity " 'to obtain comparable evidence by other reasonably available means.' " (People v. Thomas (2012) 54 Cal.4th 908, 929.)
Nor does the record establish that Officer Tran acted in bad faith with respect to the video recording of the lineup. Viewing the record in the light most favorable to the trial court's ruling, as we must, the evidence shows that Officer Tran took steps to preserve the video recording and provide it to the defense, but through some mistake or technical problem failed to do so. Tran made a reasonable effort to retrieve the tape once he was notified by the defense that it had not been included in the discovery, but the tape was no longer available. These facts do not support a finding of bad faith, much less compel one as a matter of law.
2. Unduly Suggestive Live Line-Up
F.J. initially identified a photograph of Brockman/Powell as the shooter, but claimed he did so knowing the identification he made was false. When F.J.'s father showed him a photograph of appellant a few days later, F.J. recognized appellant as the shooter, and he ultimately identified appellant in a live line up and at trial. The defense filed a pretrial motion to exclude this identification evidence as the product of unduly suggestive procedures. Appellant contends the trial court abused its discretion when it denied the motion to exclude and violated his right to due process when it permitted the identification testimony at trial. We reject the claim.
A defendant bears the burden of demonstrating that eyewitness identification evidence should be excluded as unreliable. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) A court's ruling regarding the suggestiveness of a pretrial identification procedure is subject to our independent review, with deference given to the factual findings of the trial court. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) Due process requires the exclusion of identification testimony only if the procedures used were unnecessarily suggestive and, if so, the resulting identification was unreliable. (Manson v. Brathwaite (1977) 432 U.S. 98, 106-114 (Manson); Neil v. Biggers (1972) 409 U.S. 188, 196-199 (Neil); People v. Yeoman (2003) 31 Cal.4th 93, 125.)
In cases where the defendant has been identified by an eyewitness at trial, an appellate court will set aside a conviction based on a suggestive pretrial photographic identification only if the pretrial procedure "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 (Simmons).) "When an eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be allowed to hear and evaluate his identification testimony unless the ' " 'totality of the circumstances' " ' suggests ' "a very substantial likelihood of irreparable misidentification." ' [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 168.) " 'Short of that point, such evidence is for the jury to weigh. . . . [E]vidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.' [Citation]." (Id. at p. 170.)
The procedure leading to F.J.'s identification of appellant did not violate appellant's right to due process. Sometime after F.J. falsely identified another suspect as the shooter, his own father, Fagans, showed him a picture of appellant, which F.J. recognized immediately as the shooter. Nothing in the record suggests Fagans showed F.J. the photograph at the behest of law enforcement or was otherwise acting on behalf of the prosecution. The application of the due process clause turns on the presence of state action and is not implicated when there is no improper action by police. (Perry v. New Hampshire (2012) 565 U.S. 228, 241-242.) "The due process check for reliability. . . comes into play only after the defendant establishes improper police conduct. The very purpose of the check . . .was to avoid depriving the jury of identification evidence that is reliable notwithstanding improper police conduct." (Id. at p. 241.)
Appellant cites testimony by F.J. that sometime after his father showed him the photograph of appellant, he had a conversation with Officer Tran inside a car in which Tran showed him the same photograph. However, F.J. could not remember whether Tran showed him the photograph before or after the physical lineup, and Tran clarified that he did not show the photograph to F.J. until after the physical lineup, "well after charging" appellant and after all the lineups in the case had been complete.
As for the physical lineup itself, the circumstances were not unduly suggestive. F.J. was given the standard admonitions before viewing the lineup and viewed suspects who were similar to appellant in terms of age, height, race and gender. None of the officers drew F.J.'s attention to any particular subject or did anything to suggest F.J. should select appellant.
Additionally, suppression of an eyewitness identification is not required when, despite potentially suggestive procedures, it is " 'nevertheless reliable under the totality of the circumstances.' " (Ochoa, supra, 19 Cal.4th at p. 412.) Factors relevant to determining reliability include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (Id. at p. 412.) Here, F.J. had the opportunity to view the shooter at close range, his general description of the suspect was consistent with appellant, and he immediately recognized appellant when his father showed him the photograph. Moreover, F.J.'s identification of appellant was corroborated by Duarte's identification of appellant, and was consistent with the evidence connecting appellant to the vehicle driven by the shooter as well as evidence that appellant's cell phone (as well as the victim's) was in the neighborhood near the time of the shooting. Reversal is not required.
3. Instruction on "Certainty" as a Factor Bearing on Accuracy of Identification
Appellant argues the trial court erred in giving a version of CALJIC No. 2.92 that allowed the jury to consider a number of factors affecting the accuracy of an eyewitness's identification, including "[t]he extent to which the witness is either certain or uncertain of the identification." He argues this aspect of the instruction was erroneous as a matter of law, because scientific studies show at best a weak correlation between a witness's certainty and a witness's accuracy. We disagree.
CALJIC No. 2.92 is a correct statement of law as recognized by numerous decisions over the years. (People v. Sanchez (2016) 63 Cal.4th 411, 461-462 (Sanchez).) Appellant therefore forfeited his claim by failing to request a modification of the instruction. (Ibid.; People v. Sullivan (2007) 151 Cal.App.4th 524, 561 (Sullivan).) And, even if the argument had been preserved, we would find no reversible error for the reasons stated in Sanchez and Sullivan.
4. Prior Bad Act—Fight with Victim
Appellant argues the trial court abused its discretion in admitting evidence, over a defense objection, that he had fought with Lester Young during a fishing trip they took together about a month before the shooting. We disagree.
The prosecution offered evidence of the prior fight between appellant and Young to prove identity and motive under Evidence Code section 1101, subdivision (b). Citing People v. Zack (1986) 184 Cal.App.3d 409, 415, the prosecution noted the fistfight was less inflammatory than the charged murder and was relevant to show a continuing antagonism between appellant and the victim. The defense argued the evidence was irrelevant because there was no logical connection between a battery one month earlier and the fatal shooting. Counsel also argued the evidence was more prejudicial than probative under Evidence Code section 352. The trial court ruled evidence of the fight was admissible on the issue of motive and instructed the jury with CALJIC No. 2.50 to that effect.
CALJIC No. 2.50 advised the jury: "Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a motive for the commission of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider this evidence for any other purpose." --------
We review the trial court's ruling admitting evidence of the fight for abuse of discretion. (See People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614 (Linkenauger).) "[P]rior threats and acts of violence against a victim are admissible under Evidence Code section 1101, subdivision (b), to establish motive in a prosecution involving violence or the threat of violence against the same victim." (People v. Fruits (2016) 247 Cal.App.4th 188, 204; see also Linkenauger, supra, 32 Cal.App.4th at p. 1610; People v. McCray (1997) 58 Cal.App.4th 159, 172.) Evidence of the prior assault in this case was not more prejudicial than probative (Evid. Code, § 352), particularly considering that Crystal Hendrix was the only witness to describe it and she testified that appellant was both concerned about Lester and friendly with him afterwards. The trial court did not abuse its discretion in admitting evidence about the fight. (Fruits, supra, 247 Cal.App.4th at p. 206.)
5. Prior Conviction for Attempted Murder
Appellant argues the trial court erred in allowing evidence he was on parole for attempted murder when he was arrested for the shooting in this case. The attempted murder conviction was not admitted for any purpose authorized under Evidence Code section 1101, subdivision (b), but was elicited by the prosecution as part of its efforts to rehabilitate Officer Tran, whose investigation techniques were vigorously challenged by the defense. Some context is in order.
Before trial began, the defense asked the court to exclude or sanitize the information that appellant was on parole for an attempted murder at the time of his arrest in this case. Defense counsel acknowledged the jury would learn appellant was on parole, but argued the nature of the underlying offense was unduly prejudicial and irrelevant. The trial court ruled that while civilian witnesses could not refer to the attempted murder conviction, such evidence could become relevant if law enforcement witnesses testified about the circumstances of appellant's arrest and the measures taken to bring him into custody.
During the trial, the circumstances of appellant's arrest did not become an issue. However, the defense cross-examined Officer Tran extensively about his investigative techniques in an effort to show that Tran had been dishonest and had attempted to manipulate the investigation. Defense counsel questioned Tran about misstatements Tran had made in his application for an arrest warrant for appellant, and in an affidavit he presented to appellant's parole officer for use in a parole revocation hearing. Among other things, Tran had wrongly described appellant as a validated prison gang member, had not mentioned that F.J. had identified Blockman/Powell during the first photographic lineup, and had not indicated he (Tran) had previously sworn out an arrest warrant for Blockman/Powell based on his belief that Blockman/Powell had committed the shooting.
Tran had also stated in his affidavit for the parole revocation hearing that appellant was on parole for second degree murder, when in fact he was on parole for unpremeditated attempted murder. Defense counsel did not, however, elicit this particular piece of information during cross-examination. During redirect, the prosecution sought to examine Tran about the mistake to show that Tran had not been lying about the conviction when he wrote the affidavit, but had reasonably relied on information from an official source. Defense counsel protested that no information about the nature of the conviction was before the jury so it made no sense to introduce it to rehabilitate Tran; to the extent the prosecutor wished to show Tran had himself been provided with the wrong information, she could simply ask whether the affidavit had stated the incorrect underlying offense and Tran could explain he had obtained the information from an official source. Defense counsel argued any information about the underlying conviction for attempted murder would be more prejudicial than probative under the circumstances.
The trial court overruled appellant's objection and allowed the prosecution to question Officer Tran about the discrepancy between the affidavit's reference to second degree murder and the attempted murder conviction appellant had actually suffered. The following exchange occurred: "Q[:] . . .On page seven of that affidavit that you authored there's some information in there that is likely inadvertent on your part that I want to discuss with you. That's the third paragraph down from the bottom which reads there's a sentence that says, 'Steven Buggs shows to be current to parole with a conviction for second degree murder.'[¶] Do you see that? [¶] A[:] Yes, sir. [¶] Q[:] At the time you authored that, did you believe that to be true? [¶] A[:] Yes, sir. [¶] Q[:] And you believed that to be true based on looking at what we call a CI&I rap sheet; is that true? [¶] A[:] Yes, sir. [¶] Q[:] All right. Now you know that that information was not accurate; is that true? [¶] A: Yes, sir. [¶] Q: All right. Now you know the actual fact was that Steven Buggs was current to parole for an attempted second degree murder; is that true? [¶] A[:] Yes, sir. [¶] Q[:] Okay. I'm assuming that was just an error on your part, correct? [¶] A[:] No. That was me copying or referencing the CI&I."
Because there was no information pending before the jury that Officer Tran had mistakenly characterized appellant's parole offense as a second degree murder, there was no reason to allow the prosecution to rehabilitate Tran with information that the offense was actually only an attempted murder. But assuming the court should have excluded evidence of the prior attempted murder under Evidence Code section 352, any such error was harmless since it is not reasonably probable appellant would have obtained a more favorable result absent this evidence. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008; People v. Watson (1956) 46 Cal.2d 818, 836.)
"The prejudicial effect inherent in evidence of prior offenses varies with the circumstances of each case. Factors that affect the potential for prejudice include the degree to which the prior offense is similar to the charged offense, how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense. [Citation.]" (People v. Wade (1996) 48 Cal.App.4th 460, 469 [discussing prejudicial effect of evidence concerning the nature of a prior conviction that is an element of the charged offense].) " ' "Improper evidence of [a] prior offense results in reversal only where the appellate court's review of the trial record reveals a closely balanced state of the evidence. [Citations.]" ' [Citation.]" (In re James B. (2003) 109 Cal.App.4th 862, 875.)
These and other factors militate against a showing of prejudice in this case. First, the evidence of appellant's guilt was very strong rather than "closely balanced," there being two eyewitnesses who identified him as a shooter, as well as cell phone records placing him near the scene at the time of the shooting and strong evidence connecting him to the vehicle used by the shooter. (In re James B., supra, 109 Cal.App.4th at p. 875.) Second, the evidence regarding the prior attempted murder conviction was brief and no details about that offense were provided to the jury. (See People v. Wesson (2006) 138 Cal.App.4th 959, 970.) Third, attempted murder, though a serious and violent offense, is not inflammatory when compared to the first degree murder charged in the instant case. (See People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) Fourth, the prosecution did not urge the jury to use the prior conviction to draw any improper inference regarding appellant's character, criminal propensity or guilt in the instant case. Fifth, even if the jury had not heard evidence that appellant was on parole for attempted murder, it would have learned appellant was on parole. Finally, the jury knew appellant had been convicted of the attempted murder and had served a prison term, which "minimized the chance a jury would punish him for the prior offense, for which he had already been punished." (People v. Kelley (1997) 52 Cal.App.4th 568, 579.)
F. Cumulative Error
Because we have either rejected appellant's claims of error on the merits or found them to be nonprejudicial, we reject his claim of cumulative error. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.