Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 07NF1241, Gregg L. Prickett, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Lynne McGinnis, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Samuel Conan Keeton, and his coworker David Anderson, conspired to burglarize a residence they believed was unoccupied. They were mistaken, and Sandra Patino (Sandra) who was home at the time, positively identified Keeton. Anderson agreed to testify pursuant to a plea agreement with the prosecution. A jury found Keeton guilty of four of the six charged offenses, and the trial court imposed a total prison term of nine years and four months. On appeal, Keeton contends the accomplice testimony was not substantially corroborated, Sandra’s photographic lineup identification was unreliable, and the court erred in permitting the jury to hear inadmissible hearsay. None of his contentions have merit, and we affirm the judgment.
I
In early 2007, Keeton and Anderson were employed as telemarketers by Fidelity Mortgage. They worked together Monday through Thursday, from 10:00 a.m. to 6:00 p.m., and on Saturdays. They took smoking breaks at the same time, often had lunch together, and sometimes went for a drink together after work. Anderson sometimes sold marijuana to Keeton.
In March 2007, Keeton and Anderson planned a burglary during their breaks at work over the course of a week. Anderson needed more money to finance his methamphetamine habit. Keeton told Anderson he knew of a home in Anaheim, occupied by Fabian Patino (Fabian), where they could find drugs, money, and guns. Keeton and Anderson decided to break into the home at a time when Keeton believed the residents were on vacation. They decided to arm themselves with a gun and pepper spray.
On the morning of March 19, 2007, Keeton and Anderson met at a Del Taco restaurant near their workplace. The night before, during a telephone conversation, they had agreed to commit the break-in in the morning, get to work by 10:00 a.m., and therefore have an alibi. Keeton got into Anderson’s car holding a Christmas stocking containing a handgun and pepper spray. They decided Anderson would hold the gun and Keeton would hold the pepper spray during the burglary.
Anderson drove his vehicle to the residence at approximately 9:00 a.m., and he parked just past the house. They intended to enter the home through a back sliding door that Keeton knew was usually unlocked. However, after exiting the car, they first walked to the front door and rang the doorbell to make sure nobody was home.
In a house across the street, Ismael Arrietta was getting ready to go to the bank. As he walked through the kitchen, he glanced out the beveled glass of the door and saw two silhouettes moving towards the Patino residence. Around the same time, Sandra was watching television in bed, and she heard someone at her front door.
Sandra started walking towards the front door and said, “Hello?” Keeton asked her through the door if her son, Fabian, was there. Sandra replied, “No.” Sandra next saw Keeton and Anderson rush into her home. Keeton had kicked down the door. Sandra saw one man holding a gun. She saw the other man briefly before he sprayed her face with pepper spray. Sandra started screaming, and she ran out of the house.
Arrietta was preparing to leave his home when he heard Sandra screaming for help. He opened his front door and saw two white, thinly built men, approximately 30 years of age, walking quickly from Sandra’s house towards a car. He noticed one of the men was holding a gun. The gunman got into the driver’s seat and the other man entered the passenger’s side. Arrieta called 911. Sandra reported the intruder having a shaved head but with short “blonde [hair] on the side” sprayed her face and temporarily blinded her, and then she felt a blow to her stomach. Sandra did not see the face of the intruder holding the gun.
A few days later, Detective Rodney Celello received an anonymous tip about the burglary. Based on this information, Celello prepared two photographic lineups (“six-packs”) with Keeton’s and Anderson’s photographs. In one photographic lineup, Keeton’s picture was in position No. 3. In the other lineup, Anderson’s photograph was in position No. 4.
Nine days after the burglary, Officer Robert Wardle went to the Patino residence and showed Sandra the photographic lineups. He first presented Sandra with several advisements regarding the lineups. Sandra signed the admonishment form and indicated she understood and reviewed the information. When showing the six-pack containing Keeton’s photograph, Sandra first pointed to the person in position No. 2 and said he was tall like the other intruder but the intruder’s face looked like the person in photograph No. 3 (which depicted Keeton). She commented she was unable to see the face of the attacker very well, but the person in position No. 3 looked like one of them. After Sandra made the identification, Wardle instructed her to circle the photograph and initial it. She could not identify anyone in the other lineup (the one containing Anderson’s picture).
The following day, police officers interviewed Anderson at the police station. At first he denied any involvement in the crime. He then asked for “consideration” if he told the officer what happened at the Patino residence. He maintained his innocence, but as he was being driven to jail, he asked for another interview. This time he admitted being involved in the burglary and said Keeton had helped him. He tried to minimize his involvement by claiming Keeton held the gun.
Keeton and Anderson were charged with conspiracy to commit robbery while armed with a firearm, first degree residential burglary while armed with a firearm when a nonaccomplice was present, assault with a firearm, possession of a firearm by a felon, and use of tear gas. In addition, the information alleged Keeton and Anderson had prior convictions. After the preliminary hearing, Anderson agreed to testify in Keeton’s trial in exchange for a six-year prison sentence.
Keeton testified on his own behalf. He admitted he had a criminal record that included several felony theft-related offenses that involved dishonesty. He admitted he worked with Anderson but claimed to know him only “vaguely.” Keeton denied having any involvement in the burglary with Anderson and opined Anderson was trying only to “save himself” by inculpating Keeton.
The jury found Keeton guilty of all charges except for assault with a firearm. In a bifurcated proceeding, Keeton admitted the prior conviction allegation. The trial court sentenced him to a prison term of nine years and four months.
II
A. Reliability of Sandra’s Identification
Sandra’s positive identification was one of the few independent pieces of evidence used to corroborate the accomplice’s testimony and Keeton challenges the admissibility of this evidence as violating his due process rights. Specifically, he asserts the lineup was unduly suggestive making Sandra’s identification unreliable. He argues the court should have granted his pretrial motion to exclude the lineup as unduly suggestive because it depicted Keeton as “essentially a unique individual in the entire lineup.” We disagree.
“‘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.] The question is not whether there were differences between the lineup participants, but ‘whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.] We independently review ‘a trial court’s ruling that a pretrial identification procedure was not unduly suggestive.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 698-699.)
The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.) Unfairness must be proved as a “‘demonstrable reality, ’ not just speculation.” (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)
When the trial court reviewed the six-packs, it stated all six of the pictures showed men with facial hair, with similar skin coloring, similar in age and all having the same build and weight. It stated, “It is not like one of them appears to be 400 pounds or something like that.” In concluding there was nothing unduly suggestive about the lineup, the court noted three of the men were wearing white shirts and three in dark colored shirts. Keeton, in the photograph, was wearing a white shirt and had facial hair.
Keeton’s counsel asserted Keeton was the only man in the lineup “with truly a shaved head. The rest have closely cropped hair.” Counsel added Keeton’s facial hair was unique in relation to the others who had full or close to full beards. Keeton had a beard “commonly known as like a fu manchu, or some people refer to it as a happy trail, maybe a one inch wide band of hair that goes from the lip down to the chin and then extends past the chin another 3 or 4 inches.” The court stated the other photographs showed people all having different kinds of facial hair. It noted the person depicted in position No. 6 had facial hair on the chin but not like Keeton’s chin. It concluded, “[E]ach one has [a] different type [of] facial hair” and it would not cause the lineup to be unduly suggestive.
After independently viewing the lineup, we agree with the trial court that it was not particularly suggestive: “Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
Contrary to Keeton’s suggestion, his case is not like that described in People v. Carlos (2006) 138 Cal.App.4th 907, 912: “The problem with the six-pack is obvious—it is not just that Carlos’s name and an identification number are printed on the front of the form, it is that they are printed directly below his picture. The prosecutor’s representation that all six-packs are similarly labeled may be correct, but whether by chance or design the problem here is that the suspect’s photograph is directly above the name and number. Although the name placement is not quite an arrow pointing to Carlos, it is plainly suggestive.”
Here, the lineup did not so overtly suggest a witness should select a particular photograph. We do not discern any significant distinctiveness about Keeton’s facial hair or closely shaved hair cut. Nothing was added to the photo array to “point an arrow” at Keeton, and there was not anything about the composition of the lineup that drew special attention to Keeton’s photograph. The fact Keeton’s photograph accurately depicted his appearance, including his hair, does not, on the facts presented here, amount to unconstitutional suggestiveness. All the men depicted wore different styles of facial hair making them all look slightly different from each other, but no style was particularly suggestive. Keeton’s body build, skin coloring, age, and other facial features are very similar to all the other photographs. “[A] photographic identification is sufficiently neutral where the persons in the photographs are similar in age, complexion, physical features and build....” (People v. Holt (1972) 28 Cal.App.3d 343, 349-350, overruled on other grounds in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, fn. 6.)
Keeton states the suggestive six-pack was but one facet of the unreliable identification. He asserts the passage of nine days before Sandra had an opportunity to view the photos and the fact she had little opportunity to view the suspects before being blinded by pepper spray must have limited Sandra’s opportunity to properly focus and identify the subjects. He points to Sandra’s testimony at trial claiming she did not see the face of either intruder, her recollection the officer made her circle Keeton’s photograph although she was not completely sure of her identification, and she could not identify Keeton at trial.
Indeed, Sandra’s testimony about the out-of-court identification was somewhat unresponsive, confusing, and contradictory. Sandra acknowledged she signed the admonishment form, but she could not remember what it said or that she read it. She stated she looked at the photographs and circled the one photograph because “he looked like one” of the men that came into her residence, but she was not sure. She claimed that despite her uncertainty the officer asked her to circle the photograph and sign her name. She testified she did not want to sign it. She could not identify Keeton as her attacker at trial.
To bolster the validity of her pre-trial identification, the prosecutor introduced Wardle’s testimony about the circumstances of the identification. Over Keeton’s hearsay objection, Wardle testified he admonished Sandra about the lineup procedure and Sandra indicated she understood the admonishment. She also signed the admonishment. Wardle testified he displayed the two lineups and asked Sandra if she recognized anyone. Sandra was unable to identify anyone from one of the lineups, but from the second page she commented the individual in position No. 2 looked to be the same height as her intruders, but the individual’s face, depicted in position No. 3 looked like one of the intruders. Wardle recalled Sandra said she was not able to see the intruder’s face very well. He did not recall her saying she was unsure about the person she circled (as she recently testified at trial). Thus, Wardle recalled several facts Sandra either forgot or remembered differently.
We conclude the trial court properly overruled the hearsay objection. Evidence Code section 1238 provides: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”
We reject the Attorney General’s argument the issue was forfeited. Keeton objected to the evidence as hearsay and both counsel discussed the elements of Evidence Code section 1238 before Wardle was permitted to testify. We conclude the issue was adequately preserved for appeal.
Keeton asserts Sandra’s testimony demonstrated the identification was not “a true reflection of [her] opinion at the time.” He focuses on Sandra’s testimony she did not see the intruder’s faces very well and felt unsure of her identification. Yet, the evidence was undisputed she pointed to Keeton’s photograph because she believed he “looked like the one” who broke into her home. While Sandra did not independently identify Keeton in the courtroom, or confirm that she remained certain of her photo identification, she did not disavow it. (See People v. Cuevas (1995) 12 Cal.4th 252, 267-268.) We conclude Sandra’s identification was sufficiently based on a true reflection of her opinion at the time.
We note Keeton’s counsel had an opportunity to cross-examine Sandra about the actual degree of certainty of her photograph selection, and about all aspects of the identification process, including the conditions under which she had observed Keeton. “Under these circumstances, the jury was able to evaluate the credibility of [Sandra’s] identification, and the weight her testimony deserved was for the jury to resolve.” (See People v. Boyer (2006) 38 Cal.4th 412, 480-481.) The testimony was properly admitted.
B. Sufficiency of Evidence to Corroborate Accomplice’s Testimony
The trial court instructed the jury Anderson was an accomplice as a matter of law, and therefore his testimony had to be corroborated. Keeton agrees Anderson was an accomplice and asserts the evidence was insufficient, as a matter of law, to corroborate Anderson’s testimony identifying them as the coconspirators to commit robbery.
An accomplice is defined as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.)
Penal Code section 1111 provides, in part: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
“To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citations.] ‘The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citations.] Although the corroborating evidence must raise more than a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant. [Citations.] The corroborating evidence of ‘inculpatory participation’ need not be direct nor extend to every fact and detail. It may be circumstantial [citation], and may be sufficient although ‘slight and entitled to little consideration when standing alone.’ [Citations.] Finally, ‘[unless] a reviewing court determines that corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.’ [Citations.]” (People v. Cooks (1983) 141 Cal.App.3d 224, 258.)
In this case, there is evidence to corroborate Anderson’s testimony and to link Keeton to the crimes. First, Sandra positively identified Keeton. As discussed in detail above, we hold her identification was properly admitted as reliable and considered by the jury. Second, Arietta’s testimony about who he saw fleeing the home after the crime was consistent with Keeton’s description. Arietta saw two thinly built 30-year-old Caucasian males. The above evidence, albeit slight, tends to connect Keeton with the crime even without the aid of Anderson’s testimony. We conclude the record contained sufficient corroborating evidence to permit the accomplice testimony. (People v. McDermott (2002) 28 Cal.4th 946, 985-986.)
C. The Guilty Plea
Keeton asserts counsel’s failure to request a limiting instruction advising the jury Anderson’s guilty plea could not be used as evidence of Keeton’s guilt constitutes ineffective assistance of counsel. Keeton contends there was a lack of independent evidence connecting him to the charged offenses and had the jury been properly instructed it is reasonably probable he would have a more favorable result. We disagree.
A testifying codefendant’s guilty plea is admissible to allow the jury to assess his credibility. (United States v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1004 (Halbert).) Keeton does not dispute Anderson’s guilty plea was properly admitted for the purpose of allowing the jury to assess his credibility. The parties agreed this case boiled down to a credibility contest between Keeton and Anderson. The prosecutor used the guilty plea to argue Anderson entered into a plea agreement in exchange for his truthful testimony. Keeton’s counsel used the guilty plea to attack Anderson’s credibility, arguing Anderson incriminated Keeton due to pressure from the police and because he was afraid of a lengthy prison sentence. In short, Anderson pled guilty “in order to save his skin.”
To avoid a conviction based on mere association with others, it is well-established “‘evidence about the conviction of a [codefendant] is not admissible as substantive proof of the guilt of a defendant.’ [Citation.]” (United States v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240 (Mitchell); People v. Cummings (1993) 4 Cal.4th 1233, 1322 [probative value of codefendant’s guilty plea clearly outweighed by prejudicial impact of plea]; People v. Leonard (1983) 34 Cal.3d 183, 188-189 (Leonard) [evidence person involved in charged offense pleaded guilty was inadmissible against defendant because it invited improper inference of guilt by association].)
The trial court generally has an independent obligation to instruct the jury on all the general principles that are closely and openly connected with the facts of the case. (People v. Abilez (2007) 41 Cal.4th 472, 517.) It is a well-settled principle of law, “‘evidence about the conviction of a [codefendant] is not admissible as substantive proof of the guilt of a defendant.’ [Citation.]” (Mitchell, supra, 1 F.3d at p. 240.) Therefore, because the trial court allowed the prosecution to introduce evidence of Anderson’s guilty plea, it was error for the trial court to not also instruct the jury they could only consider the plea for the purposes of assessing his credibility and not as proof of Keeton’s guilt. (Halbert, supra, 640 F.2d at pp. 1006-1007.)
Under the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836, we must determine from the whole record whether it is reasonably probable that without the error a result more favorable to defendant would have occurred. Keeton’s contention his attorney was ineffective for failing to request a limiting instruction requires us to conduct a similar review of the record: “Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
The Leonard case is instructive. In Leonard the codefendant did not testify, but his guilty plea was admitted “under the hearsay exception for declarations against penal interest (Evid. Code, § 1230)....” (Leonard, supra, 34 Cal.3d at pp. 186-187.) The facts before us are quite different from the facts in thatcase. Here, the codefendant testified, and the guilty plea was used by the defense to attack the witness’s credibility. Also unlike in Leonard, there was other evidence of Keeton’s guilt. Sandra identified Keeton. The prosecutor never suggested guilt by association or that Anderson’s guilty plea could be used to also infer Keeton’s guilt. The guilty plea was used by both sides to argue for and against Anderson’s credibility as a witness. It was not improperly referred to as suggesting Keeton’s guilt.
We cannot say is it reasonably probable that had defense counsel requested a limiting instruction or the court had given such an instruction, a more favorable result would have occurred.
III
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.