Opinion
D073067
07-31-2018
In re ANTOINE H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTOINE H., Defendant and Appellant.
Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J236963) APPEAL from orders of the Superior Court of San Diego County, Amalia L. Meza and Browder A. Willis III, Judges. Affirmed. Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court made a true finding on a petition which alleged Antoine H. (the Minor) committed a robbery. (Pen. Code, § 211.) The Minor was declared a ward of the court. (Welf. & Inst. Code, § 602.)
During the contested adjudication hearing the court required the Minor to wear his prescription glasses during the in-court identification because the victim had described the assailant as wearing prescription glasses. The Minor objected, arguing requiring him to wear his glasses during the witness's testimony amounted to an unduly suggestive identification process, thus denying him due process. We will find no error and affirm.
STATEMENT OF FACTS
The issue on appeal is the identification process. There is no dispute that the victim's phone was taken from him by threat of force. We will set forth a summary of the offense at this point and discuss the evidence of identification of the Minor as the perpetrator in the discussion section of this opinion.
The offense occurred on the school grounds of the victim's high school. The victim and his girlfriend were approached by a group of four black males. The victim recognized one of the males as a former student at the school.
One of the males asked the victim for his phone. Ultimately the person took the phone from the victim after threatening to punch him. The perpetrator was described as wearing black rimmed glasses and a grey hoodie.
The victim reported the incident to school authorities. He looked through school photos and identified Patrick B., a former student, as the person he recognized.
After the victim left school he investigated the Facebook page of Patrick B. Reviewing the Facebook account of Patrick B., the victim found pictures of the Minor. The victim recognized the Minor from photos showing the Minor with and without glasses.
The Minor testified and denied participation in the offense. He said he was with his brother that day and that he was not wearing his glasses that day as they had been broken.
DISCUSSION
The Minor contends he was denied due process because he was required to wear his prescription glasses when the victim testified at the adjudication hearing. The perpetrator wore glasses during the offense. When the victim reviewed Patrick B.'s Facebook account he found pictures of the Minor, with and without glasses. After the victim had identified the Minor from Facebook, police showed him a photo lineup of six men. The victim eliminated all the men except the Minor. As to the Minor the victim said the photo without prescription glasses made it difficult to be positive.
On the day of the hearing the Minor was wearing a new pair of prescription glasses. It appears he wore the glasses to court and wore them in court all morning. However, before the victim was to testify, the Minor did not want to wear the glasses and argued that having the victim view him while in court with glasses on would be unduly suggestive and that the victim would simply be identifying the glasses.
In order to minimize any prejudice from undue focus on the glasses, the court required the Minor to put on his glasses before the victim entered the courtroom. When the victim testified and identified the Minor, he was thoroughly questioned by both sides about his identification and the role of the glasses in that process.
As we will discuss, we think the contention there was an issue of "undue suggestive identification" is without merit and is not a close question.
A. Legal Principles
The Minor claims the in-court identification by the victim was unduly suggestive and thus denied him due process, essentially the process was unfair. An identification process is unfair when it is "so unnecessarily suggestive and conducive to irreparable mistaken identification that the [defendant] was denied due process of law." (Stovall v. Denno (1967) 388 U.S. 293, 302; Neil v. Biggers (1972) 409 U.S. 188, 196; Perry v. New Hampshire (2012) 565 U.S. 228, 239.) Where the in-court identification is tainted, reversal may be warranted. (People v. Caruso (1968) 68 Cal.2d 183, 187-190.)
Courts have frequently held that it is permissive to require a defendant during trial to exhibit physical features without violating due process. (People v. Davis (2009) 46 Cal.4th 539, 611 [showing the defendant's tattooed arms].) In People v. Holt (1972) 28 Cal.App.3d 343, 350-352, the court approved requiring the defendant to wear a hat similar to that worn by the assailant, repeat statements made by the assailant, to stand and hold a gun in the presence of the jury. Holt was disapproved on other grounds in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, footnote 6. Holt was cited with approval in Davis, supra, at page 611.
In other cases, courts have required defendants to shave beards, which were apparently grown after the offenses, so witnesses would not be confused by the presence of a beard, when the assailant had not been wearing a beard. (People v. Carpenter (1997) 15 Cal.4th 312, 372; United States v. Valenzuela (9th Cir. 1983) 722 F.2d 1431, 1433-1434.)
In United States v. Emanuele (3d. Cir. 1995) 51 F.3d 1123, 1132-1133, the court upheld an in-court identification where the defendant was required to wear glasses similar to those worn by the assailant.
B. Analysis
We must begin an analysis of the Minor's contention by observing the in-court identification was not the first time the victim identified the Minor as his assailant. When the Minor committed the offense, he was accompanied by Patrick B., a former student at the victim's high school. The victim recognized Patrick B., from past encounters with him at school. The victim did not know the Minor, who apparently went to a different school. Using some ingenuity, the victim conducted his own investigation of Patrick B.'s social media. In reviewing Patrick B.'s Facebook page, the victim saw pictures of Patrick B.'s acquaintances, including pictures of the Minor both with, and without glasses. He positively identified the Minor as his assailant and reported his discovery to law enforcement. Thereafter, the victim was shown a group of six photos which included the Minor. He quickly eliminated those except the Minor. That photo was of the Minor, not wearing his prescription glasses. The absence of the glasses made it difficult for the victim to be positive.
We turn then to the court proceedings. The record is clear that the Minor regularly wears prescription glasses. He wore them to court on the day of the hearing and wore them throughout the court session, until it was time for the victim to testify. At that point, the defense claimed it would be unduly suggestive for the witness to see the Minor with glasses on. There was no argument that the glasses were so unique that the witness would be drawn to them. Indeed, there is nothing in the record, other than defense counsel's argument, to show wearing the Minor's regular glasses would somehow create the risk of irreparable misidentification.
This was a court trial, not a proceeding before a lay jury. The court was well aware of the defense claim and undertook to minimize any likelihood of mistaken identification by having the Minor wear his glasses before the victim entered the courtroom. Thus, there was no added emphasis on the Minor's glasses. The witness was thoroughly examined on his identification of the Minor. Nothing in the record supports an argument of undue suggestiveness. The assailant described by the victim was wearing prescription glasses; the victim identified the Minor's Facebook pictures with and without prescription glasses. Not only was the identification process used here fairly conducted, it would have been misleading to have the victim identify the Minor without the glasses the Minor usually wears, and where the description of the offender included prescription glasses. The in-court identification without glasses would have likely been misleading to the witness. The Minor did not have a right to alter his appearance in order to make the witness's identification more difficult. The court did not commit any error in the way it conducted the in-court identification process.
DISPOSITION
The adjudication and disposition orders are affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.