Opinion
A149602
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE ANDYEARL ELBERT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR-217499)
Terrance Andyearl Elbert appeals from his conviction, following a jury trial, of attempted robbery (Pen. Code, §§ 664, 211). He contends a pretrial identification violated his right to due process and the trial court failed to fully instruct on a lesser included offense. We affirm.
BACKGROUND
One evening in August 2012, Eduardo Gonzalez went to get food from a taco truck parked near a billiard hall. Gonzalez noticed three people in line behind him, talking to each other. After Gonzalez paid for his food, he stepped aside to let the people behind him order. He saw that two of them had left and the remaining man was talking on the phone. Gonzalez identified this man as appellant. Gonzalez remembered appellant was wearing a black hooded sweatshirt, a black or brown beanie hat, and a shiny earring that looked like a diamond.
Gonzalez testified through an interpreter.
When Gonzalez returned to his car with his food, one of the men from the taco truck line approached and pointed a gun at him. Appellant also approached and demanded Gonzalez's wallet. Appellant put his hands in Gonzalez's pockets to retrieve the wallet, but could not pull them back out. Gonzalez grabbed appellant and tried to pull him towards the billiard hall, but tripped and fell. After a brief struggle, appellant got away and the men ran off. When Gonzalez got up, he saw appellant come back as if looking for something. Gonzalez ran to the billiard hall for help and heard a gunshot. Police later confirmed a gun had been fired near the billiard hall.
When Officer Scott Yates responded to the scene, Gonzalez told the officer the man who demanded his wallet was a black male, about five feet tall and 140 pounds. Gonzalez also told Officer Yates the man was wearing a black hooded sweatshirt, a beanie cap, and an earring. Gonzalez gave Officer Yates the man's sweatshirt, which had come off during their struggle. Officer Yates found a beanie cap, a diamond stud earring, and a cell phone in the area where Gonzalez said the struggle took place. Officer Yates determined the cell phone belonged to appellant and located a photograph of him from a government database. Yates took the photograph to Gonzalez's home that evening and Gonzalez immediately identified the man in the photograph as one of the robbers.
Appellant testified in his own defense. He went to the taco truck that evening. As he returned to the street with his food, someone came from behind and grabbed him. Appellant did not see who it was. Appellant fell on top of the person, got up, and ran. When he got home, he realized his cell phone and clothing were gone. He did not report the incident to the police because he did not know who had attacked him.
DISCUSSION
I. Pretrial Identification
Appellant argues Gonzalez's pretrial photo identification violated his right to due process. We reject the challenge.
Appellant did not object to the identification below and has therefore forfeited the claim. However, appellant contends his trial counsel was ineffective for failing to object. To establish such a claim, "[a] defendant must demonstrate that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Assuming trial counsel's failure to object was unreasonable, we must consider whether such an objection would have been meritorious to determine whether appellant was prejudiced. "In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.] [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).)
The parties dispute whether the procedure was unduly suggestive. It is undisputed that Gonzalez was shown a single photograph. "A single-person show-up is not inherently unfair. [Citation.] The burden is on the defendant to demonstrate unfairness in the manner the show-up was conducted, i.e., to demonstrate that the circumstances were unduly suggestive." (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.) Officer Yates testified that when he showed Gonzalez the photograph, "I told him I had a photo I wanted him to view of an individual that may or may not be involved in this crime. And because of my limited Spanish and his limited English, that's about all I explained to him rather than give him a full admonishment when reviewing photos." However, appellant points to Gonzalez's affirmative response, on cross-examination, to a question asking whether he testified at the preliminary hearing that officers told him "they thought this person was involved before they showed you th[e] photo." (Cf. In re Carlos M., at p. 386 [single-person show up not unduly suggestive where "[t]he record is devoid of any indication that police told the victim anything to suggest the people she would be viewing were in fact her attackers"].)
We will assume the procedure was unduly suggestive, and proceed to consider whether the identification was nonetheless reliable in light of "such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Cunningham, supra, 25 Cal.4th at p. 989.) Gonzalez saw appellant in line at the taco truck and then engaged in a close, albeit brief, struggle with him. As appellant concedes, the description Gonzalez gave to the police before the photo identification matched appellant. Officer Yates testified Gonzalez's identification of the photograph as depicting one of the robbers was immediate and without any hesitation. The identification took place the same evening of the incident.
Appellant argues eyewitness identification is unreliable, particularly when a weapon is present, and argues Gonzalez could have unconsciously transferred his memory of appellant, whom he had seen moments before at the taco truck, into his memory of the robbery. (See People v. Brandon (1995) 32 Cal.App.4th 1033, 1044 [describing witness's testimony "that research shows the accuracy of a person's identification decreases when the person is frightened or when a weapon is present"]; People v. Fudge (1994) 7 Cal.4th 1075, 1092 [describing expert's testimony about "the various difficulties with accurate perception under stress and memory retrieval over time," including "weapon focus" and "unconscious transference"].) While misidentification was certainly possible, "there must be a 'substantial likelihood of irreparable misidentification' under the ' " 'totality of the circumstances' " ' to warrant reversal of a conviction on this ground." (Cunningham, supra, 25 Cal.4th at p. 990, italics added.) " 'Short of that point, such evidence is for the jury to weigh. . . . [E]vidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.' " (People v. Arias (1996) 13 Cal.4th 92, 170.) The jury was instructed on eyewitness identification testimony (CALCRIM No. 315), and defense counsel's entire closing argument contended that Gonzalez's identification was unreliable.
Under the totality of the circumstances, we do not find a substantial likelihood of misidentification. Appellant thus fails to demonstrate any deficient performance by his trial counsel was prejudicial.
II. Lesser Included Offense
Appellant argues the trial court failed to fully instruct on a lesser included offense. We find any error harmless.
Appellant was charged with attempted robbery; it was undisputed the robbery was not successful. When the jury was instructed on attempt, the instruction (CALCRIM No. 460) was modified to reflect the charged crime of robbery. For example, the instruction began: "The defendant is charged in Count 1 with attempted robbery. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing the robbery; AND [¶] 2. The defendant intended to commit robbery."
At a hearing on proposed jury instructions, the trial court indicated its intent to instruct the jury on the lesser included offense of attempted grand theft. However, the trial court only instructed the jury on the elements of grand theft (CALCRIM No. 1800), and did not include an attempt instruction modified for that crime.
Assuming error, the omission was harmless. "Theft is a lesser included offense of robbery without the additional element of taking by force or fear." (People v. Brito (1991) 232 Cal.App.3d 316, 325, fn. omitted.) The only testimony about the crime was from Gonzalez, who unequivocally testified appellant's accomplice pointed a gun at him, plainly satisfying the element of force or fear. This testimony was corroborated by Officer Yates's testimony there was evidence of a shot fired near the billiard hall. In defense counsel's closing argument, the sole defense was that appellant was misidentified; counsel did not argue there was no force or fear. It is not reasonably probable that, had the jury been provided with an attempt instruction modified for the crime of theft, it would have acquitted appellant of attempted robbery. (People v. Moye (2009) 47 Cal.4th 537, 555-556 [failure to instruct on lesser included offense reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836].)
Appellant argues there was conflicting evidence, pointing to testimony that after appellant reached into Gonzalez's pockets, Gonzalez pulled appellant toward the billiard hall. This testimony does not contradict the testimony that appellant's accomplice pointed a gun at Gonzalez when appellant demanded his wallet. --------
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.