People v. Shabazz
| Citation | 13 Cal.Rptr.3d 839,118 Cal.App.4th 1458 |
| Decision Date | 27 May 2004 |
| Docket Number | No. B160417.,B160417. |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Samuel Sharad SHABAZZ, Defendant and Appellant. |
Christine Vento, 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, William T. Harter and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Samuel Sharad Shabazz was convicted of first degree murder and sentenced to life imprisonment without the possibility of parole based on the criminal street gang special circumstance of Penal Code section 190.2, subdivision (a)(22).1 We reject his contention that the photographic lineup which the police showed to witnesses was impermissibly suggestive. We hold that the special circumstance finding was appropriate, even though the person appellant killed was not the person he intended to kill. On the record before us, we reject appellant's argument that the proliferation of special circumstances means the California death penalty law violates the Eighth Amendment's prohibition against cruel and unusual punishment.
We agree with appellant that one firearm enhancement must be stricken and two others must be stayed. In all other respects, the judgment is affirmed.
On May 28, 2000, Lori Gonzalez waited for an opening in traffic to drive her car out of the parking lot of a Popeye's Chicken restaurant. Appellant walked up to the passenger side of her car. Ernest G., who was seated in the passenger seat of Gonzalez's car, ducked when he saw a gun in appellant's hand. Appellant fired at the car repeatedly, fatally injuring Gonzalez. Ernest G. and appellant were members of opposing criminal street gangs. Appellant shot at Ernest G. to retaliate for a drive-by shooting earlier that day.
Appellant was charged with murdering Gonzalez and attempting to murder Ernest G. He was also charged with eight attempted murders stemming from four separate incidents on two dates in December 1998.2
The jury convicted appellant of first degree murder and found, as a special circumstance, that he intentionally killed Gonzalez while an active participant in a criminal street gang, and the murder was carried out to further the activities of the gang. (§ 190.2, subd. (a)(22).) The jury further found that in committing the murder, appellant personally and intentionally discharged a firearm causing Gonzalez's death. (§ 12022.53, subd. (d).) It also convicted appellant of eight counts of attempted murder and found that each attempt was willful, deliberate, and premeditated. It found that in five of the attempted murders appellant personally and intentionally discharged a firearm, and that in three of these five, he personally and intentionally discharged a firearm, and caused great bodily injury. The jury acquitted appellant of one count of attempted murder. The court sentenced appellant to life in prison without possibility of parole, plus 25 years to life, for Gonzalez's murder. It imposed eight consecutive life terms, plus 90 years for the attempted murder counts.
Before trial, Sandy A. and Ernest G. identified appellant from an array of six photographs as the person who shot at Gonzalez and Ernest G. Appellant moved to exclude evidence of these pretrial identifications and to preclude Sandy A. and Ernest G. from identifying him at trial. Appellant argued that his photograph stood out in the array because his skin color was much darker than that of any of the other five men included in the array. The court denied the motion, saying that no particular photograph "leaps out at me."
Sandy A., who was 11 years old at the time of the crime, testified that she and her cousin J.M. were in an alley located next to Popeye's and behind the apartment building in which J.M. lived. A Black man walked through the alley and passed them. He then walked toward a car in the drive-through at Popeye's and began shooting. After he stopped shooting, he walked back past Sandy A. and J.M., who had taken cover behind a car. At trial, Sandy A. identified appellant as the shooter.
On cross-examination, Sandy A. testified she saw one side of the man's face and his back when he initially walked past her, and saw the other side of his face and his back again when he walked past her following the shooting. She told the police that the man had "dark skin" and a noticeable bump on the top of his head. She described it as the type of bump that might result from being hit on the head. She had an idea of the shape of his head before the police showed her the photographs. She selected photograph No. 3, which was appellant's photograph. On cross-examination, defense counsel asked her, "Who is the Blackest man on that six-pack, who is the darkest picture?" She responded that it was No. 3. He then asked her, "And is that why you picked out that picture, because he was so dark?" Sandy A. said, "Yeah, and he looked — I guess he looked like him." On further questioning, she agreed with defense counsel's assertions that she selected appellant's photograph because of the shape of his head and the darkness of his skin, and that she "really didn't know the face."
Ernest G. testified he saw the shooter as he walked toward Gonzalez's car. However, Ernest G. was unable to identify anyone at trial. When asked to describe the shooter, Ernest G. said, "[d]ark-skinned person." When asked if the shooter was African-American, Ernest G. replied, Asked the same question again, he said, "Could have been." On cross-examination, Ernest G. testified he selected photograph No. 3 in the photographic array and wrote that "this looks very much like the man from the shooting at Popeye's." When asked why he wrote that, Ernest G. said, "Because of the reason of dark skin and not really even knowing." He then said he picked photograph No. 3 "[b]ecause of dark skin." Counsel asked whether No. 3 was "the only truly dark-skinned Black male" among the photographs, and Ernest G. replied, "He's the darkest." He agreed with defense counsel's assertion that was the only reason he selected photograph No. 3.
In rebuttal, the officer who prepared the photographic lineup testified that he looked through several hundred photographs and tried to select the pictures which most resembled appellant.
Appellant contends the photographic array was impermissibly suggestive because he "was by far the blackest African-American" in it. He argues that admission of evidence that Sandy A. and Ernest G. selected his photograph from the array was therefore impermissible and that Sandy A.'s identification of him at trial was necessarily tainted by her prior identification from the photographic array. He argues that admission of these trial and pretrial identifications violated due process.
A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification, that is, it "`suggests in advance of identification by the witness the identity of the person suspected by the police.'" (People v. Hunt (1977) 19 Cal.3d 888, 894, 140 Cal.Rptr. 651, 568 P.2d 376, quoting People v. Slutts (1968) 259 Cal.App.2d 886, 891, 66 Cal.Rptr. 862; People v. Sanders (1990) 51 Cal.3d 471, 508, 273 Cal.Rptr. 537, 797 P.2d 561.) The defendant bears the burden of proving unfairness as a demonstrable reality, not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222, 9 Cal.Rptr.2d 628, 831 P.2d 1210.)
On appeal, we review the totality of the circumstances in determining whether an identification procedure was unconstitutionally suggestive. We must resolve all evidentiary conflicts in favor of the trial court's finding and uphold that finding if substantial evidence supports it. (People v. Wimberly (1992) 5 Cal.App.4th 773, 788, 7 Cal.Rptr.2d 152.) "`It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo.'" (People v. DeSantis, supra, 2 Cal.4th at p. 1222, 9 Cal.Rptr.2d 628, 831 P.2d 1210.)
We have examined the photographic array in question (People's exh. No. 16). It contains color photocopies of six photographs of African-American men. Appellant's contention that his skin color is the darkest among the six men in the photographs is correct. However, the photographs clearly indicate they were taken in different lighting conditions, with differences in exposure and reflected light. The printed admonition signed by the witnesses advises of such variations by noting that "photographs may not always depict the true complexion of a person — it may be lighter or darker than shown in the photo."
Apart from differing skin tones, many of the men in the photographs share certain characteristics with appellant. All of the men except No. 2 have prominent ears, as does appellant. All of the men have large lips. All of the men except No. 1 have prominent eyebrows. Numbers 1, 4, 5 and 6 have heads that are somewhat pointed on top, though not as prominently as appellant's. The man in photograph No. 6 has a long, oval face that is very similar to the shape of appellant's face. All of the men appear to be similar in age. They all have short hair worn in similar styles. Four of the men, including appellant, have a light beard. Five of them, including appellant, have light mustaches. All of the men are dressed in casual clothing.
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