People v. West

• Decision Date: 03 April 1984
• Docket Number: Cr. 12694
• Citation: 154 Cal.App.3d 100,201 Cal.Rptr. 63
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jess Perry WEST, Defendant and Appellant.

Page 63

201 Cal.Rptr. 63

154 Cal.App.3d 100

The PEOPLE, Plaintiff and Respondent, v. Jess Perry WEST, Defendant and Appellant.

Cr. 12694.

Court of Appeal, Third District, California.

April 3, 1984.

[154 Cal.App.3d 102] Allen R. Crown, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Charles P. Just and David De Alba, Deputy Attys. Gen., for plaintiff and respondent.

CARR, Associate Justice.

In this appeal defendant challenges certain provisions of that initiative measure familiarly known as the "Victim's Bill of Rights". (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.) The issue presented is whether enhancement of an adult criminal offender's sentence based on prior juvenile adjudications of criminal misconduct is permissible. We find it is not and shall modify defendant's sentence accordingly.

A jury convicted defendant of burglary (Pen.Code, § 459), robbery (Pen.Code, § 211), and assault (Pen.Code, § 245, subd. (a)), with findings he was armed with a pistol and personally inflicted great bodily injury on the victim as to both the robbery and the assault. (Pen.Code, §§ 12022, 12022.7.) The trial court imposed the upper term of five years for the robbery and a consecutive term of three years for the great bodily injury enhancement. (Pen.Code, §§ 213, 12022.7.) A concurrent term of one year was imposed for the firearm enhancement. (Pen.Code, § 12022.) Execution of sentence on the burglary and assault counts was stayed pursuant to Penal Code section 654 and the weapon and great bodily injury findings as to the assault were ordered stricken. Defendant admitted he had suffered two prior juvenile adjudications of burglary of a residence and, purportedly, pursuant to article I, section 28, subdivision (f) of the California Constitution and Penal Code section 667, subdivision (a), the trial court imposed a five-year enhancement for each prior juvenile adjudication. The total unstayed term of imprisonment was 18 years.

Defendant urges the imposition of enhancements for the prior juvenile adjudications was improper and asserts insufficiency

of the evidence to support the convictions.

FACTS

On July 10, 1982, the victim, 64-year-old Arnold Lommen was working in his front yard. He observed defendant and another man on motorcycles at a stop sign in front of his house. As they started to leave, the chain on defendant's motorcycle broke. Lommen approached them and offered assistance. The men entered Lommen's residence and defendant used the telephone. The two men then left on the other motorcycle to obtain some repair links. They returned shortly, borrowed some tools from Lommen, and repaired the chain. As they left, the men thanked Lommen and said " 'One of these days we're going to come back and we're going to pay you for this.' " The words were prophetic but the payment hardly appropriate for samaritan acts.

About a week later, on July 18th, defendant and his companion knocked on Lommen's door and were invited in by Lommen. The three conversed in the kitchen area for 10 to 15 minutes and then walked to the living room where Lommen and defendant's friend began discussing an antique telephone on the wall. Lommen was then struck down from behind. When he came to, he was bound hand and foot. He was lying face down and one of the men was holding a gun to his head. The men demanded money and threatened to shoot him. Lommen told them about what money he had. He was then beaten unconscious. It was eventually determined that Lommen's truck, a tape deck, some firearms, several musical instruments and other miscellaneous items had been taken.

The defense was alibi. Defendant conceded he had been to the victim's home on July 10th. On July 18th, however, according to the testimony of Mrs. Higby, a friend and neighbor of defendant's mother, defendant spent the entire afternoon at a picnic with her family at Folsom Lake. Defendant also testified he spent the entire day at the picnic and did not return to Mr. Lommen's on the 18th.

DISCUSSION

I

Defendant initially contends the evidence is insufficient to sustain his convictions because the victim's identification was based on suggestive pretrial photographic lineups and was unreliable. Further, the trial identification was discredited when the victim also identified a photograph of defendant's companion, Terry Poore, as defendant. As there was no physical evidence linking him with the robbery, defendant concludes the questionable identification evidence is insufficient to support the jury's verdicts. We disagree.

"A conviction based on eyewitness identification at trial after a pretrial display of photographs, including photographs of the defendant, 'will be set aside ... only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " (People v. Hunt (1977) 19 Cal.3d 888, 894, 140 Cal.Rptr. 651, 568 P.2d 376, citing Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247.) In making this determination, several factors are pertinent: the opportunity of the witness to view the defendant at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the defendant; the level of uncertainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. (People v. Savala (1981) 116 Cal.App.3d 41, 49, 171 Cal.Rptr. 882.)

The photographic lineups in the instant case were shown to the victim on July 27, 1982, and August 4, 1982, nine months and fourteen days after the incident. On each occasion he identified the defendant without hesitation. On July 10th and 18th the victim had ample time to view the defendant. The victim's degree of attention was undoubtedly high on these occasions as he had invited the defendant into his home. Defendant concedes the victim identified defendant as his assailant at both the preliminary hearing and at trial.

Against this consistent positive identification, defendant urges the black and white photographic lineup was suggestive because defendant's face was turned a different direction than the others and the color photographic lineup was suggestive because defendant's picture had a "yellow cast." We have examined these exhibits, and conclude they are not impermissibly suggestive. The black and white lineup contains a full face and profile picture of each person. While defendant's profile is facing the opposite direction from the other five pictures, the point of concern to the witness is the person's features, not the direction he is facing. In the color lineup, the fact defendant's face has a "yellow cast" is unimpressive as photograph number six has a distinctly "red cast", number four has an "orange cast", and others have differing color characteristics. The minor variations in these photographic lineups do not render them unduly suggestive. (Cf. People v. Guillebeau (1980) 107 Cal.App.3d 531, 557, 166 Cal.Rptr. 45 [Defendant's picture "darker-complected" than the others]; In re Charles B. (1980) 104 Cal.App.3d 541, 545, 166 Cal.Rptr. 729 [Defendant is the only one shown wearing a bandana on his head]; People v. De Angelis (1979) 97 Cal.App.3d 837, 841, 159 Cal.Rptr. 111 [Defendant's picture has "increased depth of shading and sharpness of detail".].)

While conceding "these procedures may not have been overly suggestive in and of themselves", defendant urges the victim's misidentification at trial of photographs of other persons as defendant reveals his confusion. The People concede the victim identified a photograph of Terry Poore as defendant. It further appears that at trial the victim identified a photograph of one Gary Holt, Terry Poore's brother, as defendant. Examination of Poore's photograph, which the victim identified as defendant, discloses Poore was wearing a hat in the picture; the victim identified Poore as being partially bald. Poore's face in the picture appears similar to that of defendant as depicted in the black and white photo lineup. The picture of Poore's brother, who is hatless and not bald, also looks similar to the black and white photograph of defendant. Though the victim exhibited some confusion as to single photographs of other persons which appeared similar to defendant's photograph, he correctly picked defendant out of two photographic lineups and twice identified him in person as his assailant. Viewing this evidence in the light most favorable to the People, it was reasonable for the jury to view the misidentifications as understandable based on the quality of the individual photographs and to credit the in-person and lineup identifications as reliable. The reliability of the in-court identification was corroborated by defendant's statements shortly after arrest that he knew where the stolen goods had been sold, and when asked about the whereabouts of Mr. Poore, stated "I'll take this ship to sea alone." Presuming in support of the judgment every fact the jury could reasonably deduce from the evidence (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738), we conclude there is substantial evidence in support of defendant's convictions.

II

Defendant contends he was improperly sentenced for two prior serious felony convictions pursuant to Penal Code section 667, subdivision (a). That subdivision provides in part: "Any person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." Defendant's attack is threefold: (1) Notwithstanding the mandatory language of subdivision (a) of section 667, the...