Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF134197. Dallas Holmes, Judge.
Brett Harding Duxbury, 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, and Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
King, J.
OPINION
I. INTRODUCTION
Defendant was convicted by a jury of three counts of robbery and one count of kidnapping for robbery. On appeal, defendant contends that the trial court erred in (1) admitting the in-court identification of defendant by a witness who had previously viewed an unduly suggestive photographic lineup, (2) instructing the jury that they could consider the extent to which the witnesses were “certain” of their in-court identifications of defendant, and (3) failing to stay one of the robbery sentences pursuant to Penal Code section 654. We agree with defendant as to the application of section 654 but reject his other arguments.
All further statutory references are to the Penal Code unless otherwise indicated.
II. SUMMARY OF FACTS
On July 24, 2006, at approximately 4:30 a.m., Horatio Zurita was in his truck in a parking lot when he was approached by a woman asking for change. A second woman approached and wielded a knife near Zurita’s stomach. The women entered the truck and directed Zurita to drive to the Rodeway Inn on University Avenue in Riverside. On the way to the motel, the women took Zurita’s wallet, which contained money and ATM cards. He was taken into room 103 of the motel, where two men wearing hooded sweatshirts waited. Zurita could not see the faces of these men because of the hoods. One of the men (wearing a black sweatshirt) searched Zurita’s clothes while the other man (wearing a gray sweatshirt) held a knife at Zurita’s stomach. They asked Zurita for his ATM card PIN number and took two chains he was wearing on his neck. He was then released. He drove two blocks away, where he called the police. After the police arrived, Zurita led them to room 103. Defendant was found alone in the room, without weapons or money. In the parking lot of the motel, Zurita identified defendant as one of the robbers based on his recognition of the black sweatshirt.
About 5:30 a.m. on November 30, 2006, a man (later identified as defendant) and a woman approached Jose Bedolla as he was about to enter a convenience store. The woman asked for money, and when Bedolla said he did not have any, the man placed a sharp object against Bedolla’s neck. The man and the woman ordered Bedolla back into his car, and forced him to drive to the Rodeway Inn on University Avenue. At the motel, they took Bedolla to room 104. No other persons were present in the room, but Bedolla did see two individuals in the parking lot. While the man continued to hold the sharp object to Bedolla’s neck, the woman searched Bedolla’s pockets and took cash and Bedolla’s watch. During this robbery, Bedolla had about 15 minutes to observe the faces of the two assailants. After Bedolla was released, he went to his car and flagged down the police. Officers went to room 104 and found a male subject inside. The police set up an in-field lineup in the parking lot, but Bedolla said that the suspect was not one of his robbers. Officers neither located nor arrested defendant that day.
On the afternoon of January 8, 2007, Regulo Gonzalez Mendoza was lured to a room in the Rodeway Inn by a woman he met on University Avenue, after she asked him for $5 and invited him to have some fun. Once in the room, the woman let two men inside, one of which was later identified as defendant. Defendant grabbed Mendoza from behind while his male cohort hit Mendoza and cut his eyebrow. The robbers took Mendoza’s keys, cellular phone, driver’s license, residence card, and gasoline card. After defendant and the others left the room, Mendoza chased after them, but they ran in different directions. Mendoza then ran to a police car across the street from the Rodeway Inn, yelling that he had been robbed. Mendoza had blood on his face and shirt from a couple of cuts on his face. A description of the robbers was broadcast and police spotted defendant standing outside a nearby restaurant. Defendant was detained inside the restaurant and soon thereafter Mendoza identified him during an in-field identification procedure. Shortly after defendant was detained, Mendoza’s cellular phone was found on the ground at the location where defendant had been standing outside the restaurant.
The next day, police showed Bedolla (victim of the second robbery) a photographic lineup that included a photograph of defendant. Bedolla was able to positively identify defendant as his assailant in that lineup. Bedolla also identified defendant at trial.
III. ANALYSIS
A. The Trial Court Did Not Err in Allowing Bedolla’s In-court Identification
Defendant contends that his constitutional right to due process was violated when the trial court allowed Bedolla to make an in-court identification of defendant after evidence of an unconstitutionally suggestive photographic lineup had been excluded. We reject this contention.
Prior to trial, defendant moved in limine to exclude from evidence any reference to the photographic lineup presented to Bedolla on January 9, 2007, the day after the Mendoza robbery. The court granted this motion on the ground that the lineup was unfairly suggestive in that defendant’s photograph was the only one that featured an individual with acne scars, a distinctive feature that Bedolla had emphasized in his original description of the assailant. Defendant also moved to exclude any subsequent in-court identification of defendant by Bedolla, arguing that Bedolla would be relying on the suggestive lineup in making that identification. The court held a hearing pursuant to Evidence Code section 402 to decide whether Bedolla had an independent recollection of defendant unrelated to the unfairly suggestive lineup. During this hearing, the following exchanges occurred:
“[Defense Counsel:] Do you remember the person that robbed you because of the pimples or because of the photograph that you saw later on January 8th [sic]?
“[Bedolla:] I remembered because I saw his—I remembered, like, his face, it was slim, and his pimples. [¶] . . . [¶]
“[Prosecutor:] Now, if you saw the person again, would you recognize him because you remember his face or because a photograph was once shown to you?
“[Bedolla:] I would probably recognize him because I remember his face.”
At the conclusion of the hearing, the court found that Bedolla was not using the photographic lineup as the only source of his recollection of defendant’s identity. Therefore, Bedolla was allowed to make an in-court identification of defendant.
Defendant’s argument presents a mixed question of law and fact. (People v. Kennedy (2005) 36 Cal.4th 595, 608 (Kennedy), citing Sumner v. Mata (1982) 455 U.S. 591, 597.) “Mixed questions of law and fact are those where the facts are established, the law is undisputed, and the issue is whether the law as applied to the established facts is violated.” (Kennedy, supra, at p. 608.) We therefore defer to the trial court’s factual findings if they are supported by substantial evidence, but independently review the application of the law to those facts. (Ibid.)
The People correctly point out that defendant bore the burden of establishing that the identification procedure was unduly suggestive or unreliable. (See People v. Johnson (1989) 210 Cal.App.3d 316, 322; People v. Cunningham (2001) 25 Cal.4th 926, 989.) In the pretrial hearing where the trial court ruled on motions in limine, the court found that defendant met this burden. The burden then shifted to the People to show by “clear and convincing proof” that the in-court identification had an independent origin, unrelated to the tainted lineup. (People v. Caruso (1968) 68 Cal.2d 183, 189-190; United States v. Wade (1967) 388 U.S. 218, 240; People v. Cooks (1983) 141 Cal.App.3d 224, 306.)
Clear and convincing evidence must be “‘“so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.”’” (In re Angelia P. (1981) 28 Cal.3d 908, 919, citing Sheehan v. Sullivan (1899) 126 Cal. 189, 193.)
The parties agree that the applicable law contemplates a number of factors: “‘In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.’” (Kennedy, supra, 36 Cal.4th at p. 608; see also Manson v. Brathwaite (1977) 432 U.S. 98, 114.)
In Kennedy, the court was confronted with a slightly different issue than what we face here: whether the pretrial identification made during the arguably suggestive identification procedure was itself unreliable. The court found that identification to be reliable, regardless of the potential suggestiveness of the procedure (which was the specific issue on appeal). Because the court found the identification to be reliable, it did not need to address the suggestiveness of the identification procedure. (See Kennedy, supra, 36 Cal.4th at p. 610.)
We now apply the above factors to the facts of this case.
(1) Opportunity to View
On one hand, Bedolla was unable to view all of the male assailant’s distinguishing features. For instance, he was wearing a hooded sweatshirt on the day of the robbery, therefore Bedolla was unable to see any tattoos. However, it took about 15 minutes from the time Bedolla was initially accosted at the convenience store until the time he was released from the motel room. During this time, Bedolla had the opportunity to look at the faces of his robbers. The man was wearing a hooded sweatshirt, but Bedolla testified that during the ride to the motel, the hood would periodically fall off, and Bedolla would look at his face while driving. The motel room where the robbery took place was well lit. The application of this factor weighs in favor of admissibility.
(2) Degree of Attention
Bedolla was not a mere casual observer to the events surrounding his robbery; he was a direct, yet unwilling participant. During the drive to the motel, Bedolla testified that he was paying attention not only to the road, but also periodically looking at his assailant’s face. After the robbery, Bedolla was able to describe distinct features of the robber’s face, such as its thinness and the acne scars. Bedolla’s personal involvement in the incident and his apparent attentiveness to his assailants support admissibility of his in-court identification.
(3) Accuracy of Description
Bedolla was able to describe the robber’s facial features on the day of the robbery. Bedolla also had a sufficient image of the man in his memory to be able to positively assert that the suspect police presented to him on the day of the robbery was not the man who robbed him. Most importantly, Bedolla accurately recalled and described the assailant’s acne scars, a distinguishing feature that is relatively uncommon. The application of this factor also supports admissibility.
(4) Witness’s Level of Certainty
Bedolla equivocated to some extent both during the Evidence Code section 402 hearing and his trial testimony. During the evidentiary hearing, when asked if defendant was one of the persons who robbed him, Bedolla responded with, “I think so” and “[h]e has to be.” On the other hand, during trial a short time later, Bedolla communicated his certainty of his previous assertion, saying he was “sure” that defendant was the man. Under these circumstances, we defer to the trial court, as the fact finder, because, as with credibility determinations, the court is in a better position to evaluate Bedolla’s confidence in his identification. (See People v. Carasi (2008) 44 Cal.4th 1263, 1290.) Because Bedolla’s statements provide substantial evidence to support a finding of sufficient certainty to support admissibility, this factor weighs in favor of the court’s ruling.
(5) Time Between the Crime and Confrontation
Bedolla’s in-court identification occurred approximately six and one-half months after his robbery. However, on the very same day of the robbery, Bedolla gave a description that he adhered to throughout trial. Furthermore, we cannot conclude that such a length of time necessarily renders an eyewitness testimony unreliable.
Taking all facts into consideration, there was sufficient evidence upon which the trial court based its finding that Bedolla was not “using the . . . photo lineup as the only source of his recollection of the incident . . . .” Independently applying the law to the court’s factual findings, we find no error in the court’s ruling on the admissibility of Bedolla’s in-court identification of defendant.
B. Defendant’s Due Process Rights Were Not Violated By the Court, Including, Among Other Factors, the Witness’s Certainty as to His In-court Identification
Defendant next contends that his constitutional rights to due process were violated through the trial court’s inclusion of a certainty factor contained in Judicial Council of California Criminal Jury Instructions, CALCRIM No. 315, dealing with eyewitness testimony. The trial court instructed, in pertinent part, as follows: “Now, here’s another instruction about witnesses, eyewitness testimony. You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he made the identification?” For the reasons stated below, we reject defendant’s contention.
The People argue that defendant forfeited the claim of instructional error by failing to object in the trial court. Prior to empanelling the jury, the trial court and counsel for each party discussed the applicable jury instructions that would be given and whether any changes needed to be made before submission. While various objections and requests for modification were made by both parties and the court, defense counsel made no objection as to the certainty instruction contained in CALCRIM No. 315. Nor was any objection asserted during the formal jury instructions the trial court gave prior to jury deliberations.
For the first time on appeal, defendant objects to the factor of CALCRIM No. 315 dealing with eyewitness certainty. While it is within our discretion to dismiss issues raised for the first time on appeal (see People v. Andersen (1994) 26 Cal.App.4th 1241, 1249), we may dispose of this issue on substantive grounds.
Defendant argues that the certainty instruction contained in CALCRIM No. 315 is unconstitutional, based on Brodes v. State (2005) 279 Ga. 435 [614 S.E.2d 766] (Brodes), a decision by the Georgia State Supreme Court. Brodes employs the rationale that there is little correlation between eyewitnesses’ levels of certainty and their reliability. (Id. at pp. 440-443.) In Brodes, two men were robbed at gunpoint at night in a lighted parking lot. (Id. at p. 437.) The first victim was unable to identify Brodes in a photographic lineup two days after the robbery, but recognized Brodes during a physical lineup the following day. (Ibid.) During his testimony, the witness described his certainty as “‘positive,’” “‘100 percent certain,’” “‘absolutely confident,’” and “‘I did not pick the wrong man.’” (Id. at pp. 437-438.) Similarly, the second victim described himself as “‘absolutely certain’” and “‘dead certain’” in his identification of Brodes. (Id. at p. 438.) The witnesses were called upon repeatedly by the prosecuting attorney to reassert their certainty in the accuracy of their identifications. (Id. at p. 435.) Brodes introduced expert testimony showing, among other things, that there is not a strong relationship between a witness’s level of confidence in his identification and the accuracy thereof. (Id. at p. 438.) The Brodes court ultimately concluded that giving an instruction containing a reference to eyewitness certainty constituted prejudicial error. (Id. at p. 442.) While we agree that there may be little correlation between a witness’s certainty and the reliability of the identification, we do not believe that an instruction permitting the jury to consider such correlation rises to the level of a due process violation when given as one of many criteria for the jury to evaluate in terms of the veracity of the identification.
Additionally, the California Supreme Court has already decided this issue, and we are obligated to follow its precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) California courts have established a procedure for informing the jury of such unreliability. In People v. Wright (1988) 45 Cal.3d 1126, the Supreme Court stated that a jury instruction similar to CALCRIM No. 315 “should be given . . . in a case in which identification is a crucial issue . . . .” (People v. Wright, supra, at p. 1144.) The court also said “the listing of [eyewitness identification] factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and . . . an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness.” (Id. at p. 1143, fn. omitted.) The court generally approved the procedure of giving standard instructions concerning eyewitness identification factors, provided that first the defense counsel is given an opportunity to suggest additional supplemental factors. (Ibid.; see People v. Martinez (1987) 191 Cal.App.3d 1372, 1383.) If a defendant wishes to educate the jury as to the unreliability of eyewitness testimony in certain respects, he must use means other than jury instructions, such as expert testimony. (People v. Wright, supra, at pp. 1153-1154.) Wright also explains that “expert testimony has the advantage of being subject to cross-examination and rebuttal, thus allowing the jury to determine for itself the weight it should give to expert opinions, rather than binding the jury to accept certain experts’ views.” (Id. at p. 1154.) Were we to follow Brodes, we would essentially be binding the jury to accept certain experts’ opinions that have not yet achieved widespread acceptance in California jurisprudence.
In People v. McDonald (1984) 37 Cal.3d 351, 369 (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914), the California Supreme Court recognized the scientific literature documenting the lack of correlation between eyewitness confidence and accuracy. However, it also said that “in appropriate cases expert opinion thereon could at least ‘assist the trier of fact.’” (Citation and fn. omitted.)
In People v. Johnson (1992) 3 Cal.4th 1183, the defendant argued that the trial court erred in giving a jury instruction containing a certainty factor. At trial, the defendant had introduced expert testimony that asserted the lack of correlation between eyewitness certainty and reliability, similar to the expert testimony given in Brodes. However, the court pointed out that the jury was not required to accept the expert testimony, and another instruction had also been given regarding how to treat such testimony. (People v. Johnson, supra, at pp. 1231-1232.) Therefore, despite the alleged “contradiction” between defendant’s expert testimony and the trial court’s jury instruction, the court found no error. (Id. at p. 1232.) Here, the lack of error is even more clear, where defendant offered no expert testimony whatsoever. Based on the foregoing, we conclude that the trial court did not err by including the certainty factor contained in CALCRIM No. 315 in its jury instructions.
See CALJIC No. 2.92. This was the same jury instruction given in People v. Wright, supra, 45 Cal.3d 1126.
C. The Sentence on Count 3 Should Have Been Stayed Pursuant to Section 654
The Bedolla (second) robbery gave rise to two counts: count 3 (robbery) and count 4 (kidnapping for robbery). For count 3, the trial judge imposed a term of one year (one-third the midterm). For count 4, defendant was sentenced to an indeterminate term of life in prison with the possibility of parole. Defendant argues that under section 654, the trial court was obliged to stay punishment on the robbery conviction because defendant harbored a single intent: to take Bedolla to the motel and rob him. We agree.
Section 654 states, in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
California courts have traditionally held that if all of the individual offenses committed in a crime were merely incidental to some single objective, the defendant may be found to have harbored a single intent, and may therefore be punished only once. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Harrison (1989) 48 Cal.3d 321, 335.) “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) “The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) The trial court made no express finding during the sentencing hearing as to defendant’s intent during the Bedolla robbery, therefore we infer the implied finding that defendant harbored multiple intents, in light of defendant’s sentence. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638.) The evidence is insufficient to support this finding.
The People draw our attention to People v. Surdi (1995) 35 Cal.App.4th 685, in which the court found the defendant was properly punished for both kidnapping and mayhem because he demonstrated a separate intent to do violence, independent of the act of kidnapping. (Id. at pp. 689-690.) The defendant was a member of a gang who participated in the beating of a rival gang member. After the initial beating, the group kidnapped the victim and put him in a van, where he continued to be stabbed. (Id. at p. 687.) There was an interruption where the group stopped at a school to discuss whether to leave the victim there. (Id. at p. 689.) Ultimately, the group took the victim to a riverbed where they continued to stab and beat him until they thought he was dead. (Ibid.)
The People argue that while the acts in Surdi are more egregious than those committed by defendant, the same principles should apply. However, not only is Surdi distinguishable on its facts, applying the principles used in Surdi compels a contrary conclusion. The People point to the instance in the motel room during which defendant “poked” Bedolla a “little bit more” even though Bedolla was already under his control. The People presumably analogize this with the multiple stabbings that took place after the beating and during the kidnapping in Surdi. However, unlike Surdi, there was no discussion that took place between defendant and his cohort relating to what they planned to do with Bedolla. There was no discernible interruption in the kidnapping prior to robbery. There was no attempt to inflict additional injury on Bedolla during the drive to the motel. The “poking” referred to in the motel does not substantially support a separate intent to injure; rather, it is more indicative of defendant’s intent to maintain control over Bedolla throughout the entire course of the robbery, which is consistent with defendant’s overarching objective of robbing Bedolla.
The facts of this case are much more similar to those of People v. Wiley (1994) 25 Cal.App.4th 159. In Wiley, the defendant attempted to rob a man at an ATM machine, but the machine malfunctioned and failed to dispense any money. (Id. at p. 162.) The defendant then forced the man into his car at gunpoint, and compelled him to move the car forward 100 feet. (Ibid.) They tried the ATM again and it still did not work, so the man called his wife so that she could bring the defendant the money he demanded. (Ibid.) The wife’s card did not work either, so the defendant forced the man to drive to their home to meet his wife and make the exchange for money. (Ibid.) The police had been alerted and the man was ultimately rescued. (Ibid.) The defendant was convicted of (1) kidnapping for robbery for the activities in relation to the ATM, and (2) kidnapping for ransom for detaining the man by gunpoint while attempting to extort money for his release. (Ibid.) The court sustained his multiple convictions, but reversed the trial court’s imposition of a second concurrent life term for the second count on the grounds that such is prohibited by section 654 and the holding of Neal v. State of California, supra, 55 Cal.2d 11. (People v. Wiley, supra, at p. 163.) The court reasoned that in committing both of the offenses for which he was convicted, the defendant had only one objective: obtaining the man’s money illegally. (Ibid.)
These facts resemble those now before us. Defendant’s objective in kidnapping Bedolla was to obtain money illegally. All of his actions committed in the course of the kidnapping and robbery were in facilitation of that single objective. If defendant had had other unique objectives, such as injuring Bedolla, he presumably would have taken further action separate and distinct from the goal of obtaining Bedolla’s money. We do not find the “poking” referenced by the People to be substantial evidence of any separate intent on defendant’s behalf.
IV. DISPOSITION
The judgment is modified to reflect a stay of the sentence imposed on count 3 pursuant to section 654. So modified, the judgment is affirmed. The court is directed to modify the abstract of judgment to reflect the staying of the sentence on count 3. The court is directed to send copies of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKinster, Acting P.J., Richli, J.
Here, however, the identification made during the unduly suggestive photographic lineup is not at issue: the trial court already excluded that evidence, unlike the trial court in Kennedy. Rather, we must determine whether there was sufficient evidence to support the trial court’s implied finding that Bedolla’s subsequent in-court identification was free of the taint of the prior unduly suggestive photographic lineup. While Kennedy used the above factors for a slightly different purpose, we find them pertinent to the resolution of the question now before us.