P. v. Dunn 11/29/06 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B181660

Case Date: 03/14/2007

Preview:Filed 11/29/06 P. v. Dunn CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. JAMAHL TRAVOUGH DUNN, Defendant and Appellant.

B181660 (Los Angeles County Super. Ct. No. NA061859)

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed. Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

BACKGROUND Appellant was charged with 11 counts of robbery, arising from the armed robbery by two men of the Long Beach 99 Cents Only Store on June 21, 2004. During the robbery, 10 of the store's employees were made to lie or kneel on the floor of the attached warehouse, where one of the two robbers kept them at gunpoint. The other, also armed, took the assistant manager to open the safe in the office, from which he took approximately $3,000 before returning the assistant manager to the other employees. Appellant was convicted on all 11 counts, and the jury found true the special allegation made in each count that he personally used a handgun in the commission of the crime, within the meaning of Penal Code section 12022.53, subdivision (b). On March 8, 2005, appellant was sentenced to 26 years in prison, and he timely filed a notice of appeal the same day.

DISCUSSION 1. Appellant's Contentions

Appellant makes four assignments of error. He contends that the trial court erred in denying his motion for a pretrial lineup; that there was insufficient evidence of constructive possession of the store's money by each of the 10 employees to support separate robbery convictions; that the trial court erred in failing to define actual and constructive possession of property stolen in the course of a robbery; and that the trial court erred in allowing the prosecution to impeach him with his prior conviction of felon in possession of a firearm.

2.

Denial of Motion for Lineup

Appellant contends that the trial court erred in denying his motion for a pretrial lineup. The trial court found that appellant's motion had failed to reach the "threshold set by the Evans case and its progeny," referring to the due process 2

requirement that "in an appropriate case . . . an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate." (Evans v. Superior Court (1974) 11 Cal.3d 617, 625 (Evans).) The "threshold" set forth in Evans required appellant to show that (1) the request was timely; (2) eyewitness identification was a material issue; (3) there was a reasonable likelihood of a mistaken identification; and (4) a lineup would tend to resolve any issue of mistaken identification. (People v. Farnam (2002) 28 Cal.4th 107, 184.) "The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. [Citations.]" (Evans, at p. 625.) Eyewitness identification was a material issue. The employees in the store at the time were Olivia Garcia (the assistant manager), Carlos Rivera, Benita Gonzalez, Tomasa Ruan, Maria Martinez, Ana Herrera, Irma Devenegas, Jose Salvatierra, Walter Lopez, Freddie Gerado, and Julio Sanchez. The robbery took place between approximately 5:15 a.m. and 6:00 a.m., and later that morning, Garcia, Salvatierra, Rivera, Herrera, and Devenegas were taken separately to a field showup where all identified appellant as one of the robbers.1

1

Devenegas was unable to identify appellant in court, and she denied having identified appellant in the field, claiming that one of the men in custody resembled one of the robbers and was similarly dressed, but she was too nervous to recognize anyone. Long Beach Police Officer Jennifer Roque testified, however, that she questioned Devenegas and transported her to the field showup, where she looked at appellant and said in Spanish, "Yes, it's him." It was appellant's burden to challenge the field identifications as unduly suggestive. (See People v. Cooks (1983) 141 Cal.App.3d 224, 305-306.) Because he did not do so and does not claim unfairness on appeal, we assume that the field identifications were fair.

3

"The broad discretion vested in a trial judge or magistrate includes the right and responsibility on fairness considerations to deny a motion for a lineup when that motion is not made timely. Such motion should normally be made as soon after arrest or arraignment as practicable." (Evans, supra, 11 Cal.3d at p. 626.) Appellant did not file his motion until October 13, 2004, nearly four months after his arrest and field identification, more than one month after the preliminary hearing, and three weeks after his arraignment. "The value of a pretrial lineup is substantially diminished once a preliminary examination has been conducted and a direct confrontation between a defendant and his accusers has occurred." (People v. Baines (1981) 30 Cal.3d 143, 148.) Because appellant was represented by the same counsel at preliminary hearing and trial, he was required to justify his failure to make the motion prior to arraignment. (See id. at p. 149.) In support of the motion, counsel submitted his declaration in which he suggested that it was not filed prior to the preliminary hearing because Garcia, the only witness who appeared at the hearing, testified that "she had trouble making an identification of the defendant without the hood over his head [and] once the hood was put on over his head she then made her identification of him."2 Counsel admitted in the declaration, however, that he had reviewed the police reports, and he discerned from them that the other witnesses had identified appellant because he was dressed in clothing similar to what one of the robbers wore (black hooded sweatshirt, Converse "All Stars" shoes). Counsel's argument at the hearing on the motion -- that many people dressed in a similar fashion in that neighborhood -suggests that he could have made the motion sooner. He told the court that he advised appellant against it, however, explaining that it would not make sense,
2

Garcia testified, "At first I couldn't recognize him that well. But then later on, yes, it was him." Defense counsel then asked, "With the hood on?" Garcia replied, "Yes." 4

because five people had already identified him. Counsel changed his mind when he heard Garcia's testimony at the preliminary hearing, because it corroborated his belief that the witnesses had identified appellant "on the clothes." "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] . . . In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) The trial court's "discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.) It is the appellant's burden to demonstrate that the trial court's decision was irrational, arbitrary, or not "`grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Appellant has not shown that the trial court's denial of the motion was irrational, arbitrary, capricious, or not guided by appropriate legal principles. Counsel's explanation justified neither a delay of more than a month after the preliminary hearing, nor a failure to bring the motion prior to arraignment. Moreover, appellant has not shown that he was justified in waiting until after the preliminary hearing. Indeed, he has established his untimeliness by admitting that the motion was based upon counsel's impression of information in the police reports, which was simply corroborated by Garcia's testimony, causing him to reconsider his decision not to bring the motion.

5

Appellant's showing that there existed a reasonable likelihood of a mistaken identification consisted of counsel's assertion that the witnesses identified appellant because of his clothes, not his physical appearance, and upon his argument that a guilty man would not have gone back to the scene of the crime dressed in the same clothes. However, appellant's premise -- that the witnesses identified the clothing, not the physical features -- falls short of showing a reasonable likelihood of a mistaken identification. Although the burden to produce evidence to support his motion was upon appellant (see People v. Yonko (1987) 196 Cal.App.3d 1005, 1009), he did not place the police reports in evidence, and trial testimony shows that he exaggerated the witnesses' reliance upon similar clothing. Garcia testified that she had no doubt about appellant's identity, "[b]ecause those faces were stamped in my head." She explained that at the field showup, she recognized appellant before she asked the police to put his hood up, but was not sure enough to say so to the police until after they had done so. Rivera identified appellant at the field showup as one of the robbers, explaining that he had no doubt, not only because of his black sweater, but also because he recognized appellant's goatee. Herrera was taken to a field showup by Long Beach Police Officer Robert Trout, and she recognized appellant as the robber with the goatee who had threatened to shoot her in the back room unless she stopped looking at him. Trout quoted her as having said, "I know by his eyes and cheeks. He is also wearing the same shoes." Devenegas, who claimed she was not able to identify appellant in the field, did give Roque a physical description close to appellant's, confidently describing him as a Black male, approximately 6'2" to 6'4", thin build, wearing a black hooded sweatshirt with a zipper in front, dark pants, perhaps shorts, and black canvas shoes with white soles. Appellant is 6'0" or 6'1" tall, weighed 180 pounds when arrested, and was wearing a black hooded sweatshirt and black canvas shoes with white soles. 6

Appellant contends that an important factor indicating the possibility of misidentification was the difference in testimony regarding the color of his gloves. One witness thought appellant was wearing black gloves during the robbery; two witnesses testified that they were gray. Whatever the significance of the gloves' color, the information was available to appellant prior to the preliminary hearing. Counsel admitted that the foundation for his arguments was found in the police reports prior to the preliminary hearing, and the discrepancy in glove color was noted in those reports. Officer Roque saw appellant wearing gray gloves just before he ran from her, and Officer Riordan recovered gray gloves as he chased appellant. Appellant told Detective Steve Prell the day of the robbery that he threw down brown gloves when he ran.3 Thus, because appellant's attempt to show there was a reasonable likelihood of a mistaken identification establishes that he had sufficient information to bring the motion prior to the preliminary hearing and the arraignment, his motion was untimely. We conclude that the trial court did not abuse its discretion in denying appellant's motion for a lineup.4 (Evans, supra, 11 Cal.3d at p. 626; People v. Baines, supra, 30 Cal.3d at pp. 148-149.)
3

Appellant claims that no witness was asked to identify the gloves in evidence, but appellant testified and identified them as his.

4

As the trial court did not err, there is no need to consider appellant's claim that error caused a miscarriage of justice. We would reject it in any event. Appellant contends that prejudice is established by the likelihood of mistaken identification shown by the witnesses' inability to pick his booking photo from a photo spread shown to them by a defense investigator one week prior to trial. A fairly conducted field identification soon after the crime was committed is generally considered more accurate than an identification made months later. (In re Richard W. (1979) 91 Cal.App.3d 960, 970.) Further, we observe that appellant does not suggest that his booking photo is a better likeness than his live person. Garcia, Salvatierra, and Rivera all identified appellant in court as the robber who stayed with the other employees when the other robber took Garcia to the safe; all testified that they had no doubt. Herrera identified appellant in court as looking 7

3.

Multiple Robbery Victims

Appellant was convicted of 11 counts of robbery, count 1 naming Garcia as the victim and each of the remaining 10 counts naming one of the other employees forced at gunpoint to remain in the warehouse while Garcia was taken to the safe. Appellant contends that there was insufficient evidence to support his convictions on all but count 1, because there was no evidence that any employee other than Garcia had actual or constructive possession of the stolen money. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code,

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