People v. Cuevas, Cr. 12276

• Decision Date: 15 October 1980
• Docket Number: Cr. 12276
• Citation: 168 Cal.Rptr. 519,111 Cal.App.3d 189
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudolfo Rodriguez CUEVAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 519

168 Cal.Rptr. 519

111 Cal.App.3d 189

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudolfo Rodriguez CUEVAS, Defendant and Appellant.

Cr. 12276.

Court of Appeal, Fourth District, Division 2, California.

Oct. 15, 1980.

Robert F. Bolinger, Jr., Santa Ana, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Michael D. Wellington and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

TAMURA, Associate Justice.

Defendant was convicted of six counts of armed robbery in a jury trial and was sentenced to a total of 15 1/3 years. He appeals from the judgment entered pursuant to these convictions on the grounds that he was denied effective representation of counsel at trial and that his consecutive subordinate sentences were improperly enhanced for firearm use.

Defendant was charged with eight counts of armed robbery by amended information. The People's case against him was based on identifications by victims of, and witnesses to, the robberies. At trial, the People presented 12 witnesses who testified that defendant was the man who had held up two restaurants, a glass shop, a bank, a market, and a hardware store where they were patrons or employees. All 12 of the witnesses identified plaintiff in a photo lineup, at his preliminary hearing, and at trial. Seven of the witnesses also identified defendant at an in-person lineup conducted by the police after they had arrested defendant on suspicion of armed robbery.

Defense counsel questioned the People's witnesses fairly closely concerning the accuracy of their identifications and the details of the photo and in-person lineups which they had observed. All of the witnesses testified that no one had made any suggestions to them as to which picture in the photo lineup might be that of the perpetrator of the robbery(ies), that they had not been permitted to consult with other witnesses as to which photo was that of the robber, and that they had not been led to believe that they must pick out the photo which looked most like the robber if they were unable to make a positive identification on viewing the photos. When questioned concerning the in-person lineup, two witnesses stated that they had heard a woman (another witness at the lineup) ask a question which singled out defendant from others in the lineup as the possible perpetrator. ¹ Both of these witnesses testified that they were not influenced by this incident, since they had already identified defendant as the robber before the woman spoke. The other five witnesses to the in-person lineup stated that they had heard no comments or suggestions at the lineup which might have influenced them in their identifications. All seven witnesses to the live lineup indicated that they were not permitted to consult with other witnesses at the lineup and that the police did not prompt them in any way concerning their identifications.

The jury returned verdicts of guilty on six of the eight armed robbery counts with which defendant was charged. Defendant was sentenced to five years on Count 2, the upper base term for his principal offense (Pen.Code, § 1170.1, subd. (a)), and his principal term was enhanced by two years for firearms use (Pen.Code, § 12022.5). He also received one-third of the middle term for robbery on each of the five subordinate counts and eight months enhancement for firearm use (Pen.Code, § 12022.5) for each count, for a total of eight and one-third years to be served consecutively with the seven-year principal term. (Pen.Code, §§ 1170.1, subd. (a), 667.5, subd. (c)(8).) ²

On appeal, defendant contends that he was denied effective representation of counsel in that his attorney failed to investigate the circumstances surrounding the in-person lineup and made no motion at trial to suppress the identification evidence which was tainted by the improper lineup. He also contends that the enhancement of his consecutive subordinate robbery terms for firearm use pursuant to Penal Code section 667.5, subdivision (c)(8), was improper, citing People v. Harvey, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. Since we conclude that defendant has not carried his burden of proving the inadequacy of trial counsel, we must affirm the judgment of conviction. However, as we explain below, defendant's sentence was improperly enhanced, so that his case must be remanded to the trial court for resentencing in accord with the views expressed in this opinion.

I ADEQUACY OF TRIAL COUNSEL

In People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, our Supreme Court articulated the analysis to be employed in determining whether a defendant has been denied adequate assistance of counsel: "The burden of proving a claim of inadequate trial assistance is on the appellant. (Citation.) Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense. (P) Once an appellant has met these burdens, the appellate court must look to see if the record contains any explanation for the challenged aspect of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.... (P) Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus." (Id., at pp. 425-426, 152 Cal.Rptr. at pp. 739, 590 P.2d at pp. 866.)

Recently, in People v. Nation, 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051, our Supreme Court applied the Pope analysis to a situation involving an allegedly impermissibly suggestive identification procedure. The high court began by stating that "(i)n order to demonstrate that the alleged incompetency of his trial counsel in not objecting to the identification evidence denied him a potentially meritorious defense, the defendant must present a convincing argument that the pretrial identification procedure 'resulted in such unfairness that it infringed his right to due process' ... (by) 'giv(ing) rise to a very substantial likelihood of irreparable misidentification.' " (Id., at p. 179, 161 Cal.Rptr. at p. 304, 604 P.2d at p. 1056, quoting Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247.) The Nation court then reviewed the critical facts, noting that three witnesses to the crime had viewed mug shots together, and had consulted with each other in selecting the defendant's picture. These witnesses testified that they felt constrained to select the assailant from one of the pictures shown them, so they consulted together and chose the photo which looked most like the perpetrator. One of these witnesses was then allowed to take the picture home with her and keep it for a week. During this time she showed the mug shot to her mother, who agreed it was the same man who had made a lewd remark to her prior to the crime. It was the mother, who had seen only the picture brought home by her daughter, who identified defendant in a subsequent in-person lineup. Based on these facts, the court concluded that the picture lineup was so impermissibly suggestive as to deny defendant due process of law, that the live lineup identification was tainted by this denial of due process, and that the appellant had carried his burden of showing that trial counsel's failure to object to the introduction of the identification evidence deprived him of a potentially meritorious defense and thus of his right to constitutionally adequate assistance. (People v. Nation, supra, 26 Cal.3d 169, 181, 161 Cal.Rptr. 299, 604 P.2d 1051.)

In the case at bench, defendant argues that the in-person lineup was impermissibly suggestive because two witnesses heard a third witness ask a question which suggested that defendant was the robber. He maintains that counsel erred in failing to investigate the circumstances of the live lineup and also in failing to move to exclude the identification evidence as tainted by the denial of due process at the in-person lineup. ³ In contrast to the Supreme Court's review of Nation, however, our analysis of the facts in the instant case reveals neither impermissible suggestiveness denying defendant due process, nor failure to pursue a potentially meritorious defense. The picture lineups were conducted with scrupulous care to avoid any denial of due process: Witnesses viewed the mug shots separately, were not allowed to consult with each other, and were not prompted in any way by the police. All the witnesses testified that they had not felt obliged to pick out a picture that looked most like the robber if they could not make a positive identification. The live lineup, too, was conducted so as to avoid due process problems. Witnesses were not allowed to consult with each other, and the police made no suggestions as to who the suspect might be. Two witnesses did overhear a third viewing witness ask a question which indicated which man in the lineup she thought to be the robber. However, both these witnesses testified that they had picked out defendant before they overheard the comment, and neither of these witnesses was the sole identifying witness of the robberies of which they had been victims. In both cases, defendant was also identified at trial by witnesses who had picked him in the picture lineup but had not attended the live lineup. Given the number of positive identifications of defendant which were not dependent in any way on the inadvertent suggestion made to two witnesses at the in-person lineup, we cannot conclude that in failing to move to exclude the identifications possibly tainted by...