People v. Hernandez, Cr. 2736

Citation89 Cal.Rptr. 766,11 Cal.App.3d 481
Decision Date22 September 1970
Docket NumberCr. 2736
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Henry HERNANDEZ, Defendant and Appellant.

James E. Neal, Westminster, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jeffrey C. Freedman, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Defendant was charged by information with one court of armed robbery in violation of Penal Code, section 211. After trial by jury, he was found guilty as charged of first degree robbery, probation was denied, and he was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction. 1

Contentions

On appeal, defendant makes the following contentions:

(1) Defendant's pretrial identification was so unnecessarily suggestive that it tainted his in-court identification and deprived him of due process of law.

(2) The district attorney was guilty of prejudicial misconduct in his opening statement to the jury.

(3) The trial court committed prejudicial error in admitting fingerprint evidence obtained as the result of the unlawful arrest of defendant.

(4) The trial court committed prejudicial error in denying defendant's motion for mistrial because of the trial judge's comments on the applicability of a jury instruction.

The Facts

On June 2, 1966, at about 8:30 p.m., a market located in the City of Cypress, County of Orange, was the object of a robbery. Mr. Keaton was an employee of the market and was on duty at the time. He was alone. He was working in the back of the store when he heard the door squeak, indicating to him that someone had just entered the market. He immediately went to the front of the store where the counter was located. While standing at the counter, he saw a man walking toward him carrying a quart bottle of beer. The man appeared to be under the age of 21, and Mr. Keaton asked the man for identification. The man answered that he did not have any and asked to speak to the owner. Mr. Keaton replied that the owner was not present. The man then pulled a gun and ordered Keaton to lie on the floor. Keaton complied, and while he was on the floor he heard the cash register being emptied. There had been currency in the register, but after the man left, the currency was gone and only change remained.

After the robbery, the quart bottle carried by the robber to the counter was found sitting on the counter. Subsequently an identification technician employed by the Orange County Sheriff's Department obtained a partial fingerprint from the bottle. At trial, over the objection of defendant's counsel set forth in greater detail below, the technician testified that this partial print corresponded to the fingerprints of defendant. The exemplar of defendant's fingerprints was apparently obtained during his detention following his arrest.

Although Keaton observed the robber for only a few moments, he had never been involved in a robbery before and the appearance of the robber made a lasting impression on his mind. He noted and recalled that the robber was a man of Mexican ancestry, about 5 feet 10 inches tall; that he was about 9 years of age; that he was wearing a long-sleeved shirt, blue in color, buttoned down the front and tucked into dark pants; that he was wearing large 'bubble-type' sunglasses that did not cover his eyebrows; that his eyebrows were unusually large; that he wore his hair combed back; and that when he talked, his mouth was 'kind of tight and nervous.'

Sometime after the robbery, Mr. Keaton was telephoned by a policeman and asked to come down to the police station for the purpose of looking at some photographs and observing a lineup. Upon arriving at the station, he was shown mug shots of six different men of Mexican ancestry. He was told that the photographs were taken a considerable time before, approximately 14 months. He selected a photograph of defendant but was unable to make a positive identification because the person in the photograph wore a beard. Thereafter, the police told Mr. Keaton that they wanted him to see a lineup. They said they had a suspect but did not say they had the robber. They told Mr. Keaton nothing about the man prior to the lineup. Through a two-way mirror (sic) Mr. Keaton observed six persons all of Mexican ancestry, several of whom resembled defendant. All of them were wearing jail clothing. Mr. Keaton immediately made a positive identification of defendant as the robber. He had no difficulty at all in recognizing him.

During the People's case in chief, Mr. Keaton testified to viewing the photographs, his identification of defendant at the lineup and, also, his identification of defendant at the preliminary hearing. Additionally, he made an unequivocal incourt identification of defendant as the robber.

Miss Workman, who lived about two blocks from the market, testified that at about 8:30 p.m. on June 2, 1966 she observed near the market a green 1958 Chevrolet convertible with a top, dirty-white in color. The top had a 'sort of a black patch up above by the driver's side' and there was a dent in the left front hubcap. She observed that the car had two occupants, but she could not identify either of them, except to say that the person on the driver's side was a blond man. She later saw a vehicle at the Santa Ana Police Department and identified it as the same one that had been near the market. Although reference was made in the prosecutor's opening statement to facts tending to connect this automobile with defendant, no such evidence was introduced at trial.

Although defense counsel had at one point indicated his intention to object to the introduction of such evidence on the ground that it was a product of an unlawful arrest and search, on the last day of the trial a .22 caliber pistol together with a number of .22 caliber cartridges were introduced into evidence by stipulation with the further stipulation that they were in the possession of defendant on the night of June 3, 1966.

The defense offered no evidence.

The Pretrial Identifications

The pretrial identifications all took place prior to June 12, 1967, and the rules announced in United States v. Wade, 388 U.S. 218, 236--237, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1162--1163, and Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178, 1186 are therefore inapplicable. (Stovall v. Denno, 388 U.S. 293, 296--301, 87 S.Ct. 1967, 1969--1972, 18 L.Ed.2d 1199; People v. Feggans, 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Thomas, 5 Cal.App.3d 889, 896, 86 Cal.Rptr. 97.)

Defendant contends, however, that the pretrial identifications were so unnecessarily suggestive as to be conducive to irreparable mistaken identification, that the in-court identification was derived therefrom and that, therefore, the admission into evidence of these identifications of defendant abridged his right to due process of law. (Stovall v. Denno, Supra; People v. Caruso, 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336.) A judgment of conviction will be reversed on this basis only if the lineup procedure was so unnecessarily suggestive that it gave rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253; People v. Thomas, Supra, 5 Cal.App.3d at 898.) To sustain his claim of a violation of due process, defendant must show that his trial resulted in essential unfairness 'not as a matter of speculation but as a demonstrable reality.' (Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268, 276; People v. Thomas, Supra, 5 Cal.App.3d at 900, 86 Cal.Rptr. at 104.)

There is nothing whatever in the evidence to support defendant's contention that the pretrial identifications were unduly suggestive. He was shown photographs of six different men, all of Mexican ancestry. The photograph of defendant was in no way singled out, and, in fact, although he selected defendant's photograph, he was unable to make a positive identification because in the photograph defendant wore a beard. There is no evidence that the photographs were used to prime Mr. Keaton to identify defendant nor was Keaton told that the man whose photograph he had selected would be included in the lineup. (Cf. People v. Feggans, Supra, 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Brown, 273 A.C.A. 124, 127, 77 Cal.Rptr. 863.) Mere proximity in time between the viewing of photographs and a lineup is not, in itself, evidence that the witness has been improperly primed to make a lineup identification. (People v. Feggans, Supra; People v. Brown, supra.)

Similarly, there is not a shred of evidence that there was anything suggestive about the lineup. All of the subjects were men of Mexican ancestry; all were dressed in similar clothing; and several resembled defendant.

Defendant urges that it can be inferred that defendant was the only person common to the photographs and the lineup. There is no evidence in the record to compel this conclusion, but even so, such a procedure would not be violative of due process absent some element of suggestiveness in the photographs or their presentation or in the lineup or its presentation. (Cf. People v. Feggans, Supra, 67 Cal.2d at 449, 62 Cal.Rptr. 419, 432 P.2d 21.) Moreover, from the evidence there is a very strong inference that Mr. Keaton was not influenced by the photograph at all. He could not make positive identification from it because of the beard. But upon viewing the lineup, he immediately and unequivocally identified defendant. The conclusion is irresistable that he did so based on the descriptive facts he noticed at the time of the robbery, set forth in the statements of facts.

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