Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. SA059318of Los Angeles County,
Robert O’Neill, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Marcos Richard Fontaine appeals the judgment entered following his conviction by jury of first degree burglary. (Pen. Code, § 459.) The trial court found Fontaine had eight prior convictions within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior convictions within the meaning of Penal Code section 667, subdivision (a)(1), and that he had served six prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Fontaine to state prison for a term of 36 years to life.
On appeal, Fontaine contends a photographic identification procedure was unduly suggestive. We reject this contention and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
On July 27, 2004, Frederick Schroeder lived in a condominium in a gated complex in Santa Monica. At approximately 2:00 p.m., Schroeder heard what sounded like someone banging on the front door with a hammer. Schroeder went to the entryway where he saw “two guys burst through the door with a crowbar.” The males said nothing, turned and ran. Schroeder called 911. Schroeder described the male with the crowbar to the 911 dispatcher as between 5 feet 8 inches and 5 feet 10 inches, balding, with a dark green T-shirt and tan pants. Schroeder described the second male as taller, possibly 5 feet 11 inches, with dark hair, sunglasses, a yellow T-shirt and darker pants. Schroeder indicated the male with the crowbar appeared older than the other male, “maybe in his late 30’s,” and he weighed approximately 160 pounds with a thin to average build. When the dispatcher asked if the male with the crowbar had a beard or a mustache, Schroeder responded, “Uh, no.” The dispatcher asked, “You couldn’t, you couldn’t remember or . . . .” Schroeder responded, “I don’t, I’m uh. It’s getting fuzzy now, yeah.” Schroeder indicated the second male was in his late 20’s or early 30’s, and “looked a little more muscular” than the first male, possibly weighing 180 pounds and he had no facial hair.
At that point in the conversation, City of Santa Monica police officer Enrique Esparza arrived at Schroeder’s home. Esparza noted Schroeder was visibly shaken. Schroeder described the first male who entered as approximately 30 years of age, five foot eight inches tall, weighing 150 pounds, with black hair, balding on top, wearing a yellow shirt and khaki pants. Esparza noted the front door had been forced open, causing it to split down the middle. Esparza stayed at the condominium until ID technician Michelle Combs arrived.
Combs obtained five sets of fingerprints from the edges of the door frame. Combs submitted one of these sets of fingerprints to automated fingerprint identification systems on July 29, 2004, and August 8, 2004, but obtained no positive matches.
On November 3, 2005, City of Santa Monica forensic specialist David Alonso received notification of a positive fingerprint match from one of the automated systems. Alonso made a positive comparison, then forwarded the results to Santa Monica police detective Michael Bambrick, who obtained a photograph of Fontaine that was taken on August 6, 2004, and created a photographic lineup. On December 27, 2005, Bambrick read Schroeder an admonition, then showed him the photographic lineup. Schroder identified Fontaine, circled his picture and initialed the photograph.
At trial, Schroeder testified his eyes went immediately to Fontaine’s picture in the upper right of the photographic lineup but he looked at the lineup for approximately 30 seconds before making an identification because he wanted to be certain. Schroeder identified Fontaine as the man who came through the front door of the condominium. On cross-examination, Schroeder conceded that each of the other five individuals in the photographic lineup appeared to have a full head of hair.
Combs testified at trial that Fontaine’s fingerprints matched the prints she lifted from Schroeder’s front door.
Fontaine made a pre-trial motion to suppress evidence of Schroeder’s identification of Fontaine in the photographic lineup. After hearing argument, the trial court concluded the backgrounds of the photographs were similar and all the individuals had the same color hair and the same facial hair. Although Fontaine was depicted as having a receding hairline, the hairlines of the individuals in position numbers two and six also appeared to be receding. The trial court concluded there was nothing about Fontaine’s photograph that caused it “to stand out from the others, certainly not in a way that suggests he is going to be a police suspect in this matter.” Based thereon, the trial court denied the motion to suppress the identification.
CONTENTIONS
Fontaine contends the trial court erroneously denied the pretrial motion to suppress the photographic identification and admission of Schroeder’s tainted identification at trial violated Fontaine’s right to due process.
DISCUSSION
1. Applicable principles.
An appellate court will set aside “convictions based on eyewitness identification at trial following a pretrial identification by photograph” only if the pretrial procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2d 1247]; People v. Blair (1979) 25 Cal.3d 640, 659.) “Because human beings do not look exactly alike, differences [in the appearance of individuals in a photographic lineup] are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.) “The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
We independently review a trial court’s ruling that a pretrial identification procedure was not impermissibly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.) If a court determines an identification procedure was unduly suggestive, it must then determine “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.]” (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
2. Fontaine’s arguments.
Fontaine contends his picture impermissibly stood out from the others in the photographic lineup because only he was balding. Fontaine asserts the only consistent feature described by Schroeder in the 911 call and the conversation with Officer Esparza was the fact the male with the crowbar was balding. Thus, according to Fontaine, the photographic lineup impermissibly suggested the identity of the individual the police suspected had committed the burglary.
Fontaine further asserts the identification was not reliable under the totality of circumstances because Schroeder saw the man with the crowbar only for two to four seconds and admitted he was shocked and frightened by the incident. Fontaine further claims the description Schroeder gave the 911 dispatcher was not consistent with the description he gave Officer Esparza (dark green shirt/yellow shirt; late thirties/ approximately thirty; five foot eight or ten inches tall/five foot eight inches tall; 160 pounds/150 pounds). Fontaine notes Schroder failed to mention Fontaine’s mustache to the 911 dispatcher or Officer Esperanza, notwithstanding the fact Fontaine’s mustache dominates his face in a picture taken 10 days after the alleged burglary. Fontaine asserts the photographic identification cannot be considered “fresh” in that it occurred 17 months after the offense. Fontaine concludes the only other evidence of guilt consisted of Fontaine’s fingerprints on Schroder’s front door, which Fontaine asserts are insufficient to sustain a conviction. (See Mikes v. Borg (9th Cir. 1991) 947 F.2d 353, 361.)
3. Resolution.
The photographic lineup, People’s exhibit No. 11, has been transmitted to this court for our independent review. We conclude that Fontaine, like the defendant in People v. Carter (2005) 36 Cal.4th 1114, 1163, “overstates the significance of the distinguishing characteristics seen in the photographs, and overlooks their more compelling general similarities.” Indeed, all six individuals depicted share the same general features. Where individuals depicted in a photographic lineup are of the same ethnicity and of “generally of the same age, complexion, and build, and generally resembling each other,” and where the accused’s “photograph did not stand out, and the identification procedure was sufficiently neutral,” the lineup is not impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217 [differences in facial hair and the age of the photographs; only the defendant was depicted in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222-1223 [differences in clothing].)
Although Fontaine has less hair on the top of his head than the other individuals in the photographic lineup, the individuals in position two and six both appear to have receding hairlines. More importantly, the fact Fontaine’s hairline has receded further than the hairlines of the other individuals depicted does not cause his photograph to stand out from the others in a way that suggests he should be selected. Consequently, we agree with the trial court’s assessment the lineup is not unduly suggestive.
Because Fontaine has failed to establish that the photo identification procedure was unduly suggestive, we need not address “ ‘whether the identification was nevertheless reliable under the totality of circumstances.’ ” (People v. Carter, supra, 36 Cal.4th at p. 1162; People v. Carpenter, supra, 15 Cal.4th at pp. 366-367.) However, it deserves mention that Schroeder observed Fontaine at close range during daylight hours and Schroeder described Fontaine and his companion in detail to the 911 dispatcher. Contrary to Fontaine’s assertion, the description Schroeder gave the 911 dispatcher was consistent with the description he gave Officer Esparza. Finally, the reliability of the identification is demonstrated by the presence of Fontaine’s fingerprints on Schroeder’s front door.
The case cited by Fontaine, Mikes v. Borgs is not a photographic identification case but a sufficiency of the evidence case. Thus, Mikes did not address whether an unduly suggestive photographic identification procedure was reliable under the totality of the circumstances. In Mikes the only evidence of the defendant’s guilt was the presence of the defendant’s fingerprints on the murder weapon, a bank stanchion the deceased had purchased at auction. Here, Fontaine’s fingerprints on the front door were not the only evidence of guilt. Rather, Fontaine’s fingerprints are relied upon in this context only to demonstrate the reliability of Schroeder’s identification of Fontaine.
In sum, the photographic lineup was not unduly suggestive and, in any event, Schroeder’s identification of Fontaine at trial was reliable under the totality of the circumstances.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.