Opinion
H035170
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JIMENEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS091929)
A jury convicted defendant Daniel Jimenez of second degree robbery (Pen. Code, § 211). The court suspended imposition of sentence and placed him on probation for three years on condition, among others, that he "not use or possess . . . drugs . . . without the prescription of a physician . . . ," "[n]ot possess, receive, or transport any firearm," "not . . . associate with any individuals you . . . suspect to be drug users or on any form of probation or parole . . . ," and "[s]tay at least 100 yards away from [the victim], his residence, any vehicle he owns or operates, or [his] place of employment."
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that (1) the court prejudicially erred and violated his constitutional rights to due process and trial by jury when it "incorrectly" instructed the jury with CALCRIM No. 3518; (2) his trial counsel was prejudicially ineffective in failing to move to suppress the victim's eyewitness identification testimony; and (3) the above-mentioned probation conditions are "unconstitutionally vague and overbroad" and must be modified. We modify the probation conditions and, as modified, affirm the order.
Defendant also filed a petition for a writ of habeas corpus, which we have considered with this appeal. We dispose of that petition by separate order.
I. Background
Around midnight on August 12, 2009, Humberto Munoz was walking from the bus stop to the apartment he shared with his friend Julissa and his boyfriend Luis. Munoz was almost home when he saw two women and a man walking in the same direction ahead of him. One of the women, later identified as Marleny Arango, was "weaving" as she walked, but her companions "were walking normal." "It wasn't that dark" on the street, but "it wasn't that lit up," and Munoz looked at them as he passed them. He had never seen them before. As Munoz stood under the bedroom window of his second-floor apartment and called up to Luis to open the door, Arango "approached . . . and asked . . . if I was Jessica and I said no."
The record inconsistently refers to Munoz at times as a male and at other times as a female. During the 911 call, the dispatcher asked if "Humberto" was the name of a man or a woman. Munoz replied, "It's for a man because I'm a . . . supposedly I'm a woman bu --, but in reality I'm a man." At trial, defendant's counsel asked Munoz, "[W]hat do you prefer to be called[?] Mr. Munoz? Ms. Munoz?" Munoz responded, "However you want." We will refer to Munoz as a male. We do so for consistency and clarity, intending no disrespect.
Arango "was drunk" and smelled like alcohol. She was close enough that Munoz could see her "because of the reflection of my window." Munoz could see Arango's face and her "kind of greenish" eyes. He could also see the faces of Arango's two companions, who were standing six or seven feet away. The man stood "[b]ehind the pickup truck" that was parked in front of the apartment building. "I saw him there." He was the same man Munoz had just seen walking in front of him.
Arango asked for money, and when Munoz "told her I didn't have any," Arango demanded that he open the fanny pack buckled around his waist. "[A]nd then she grabbed it. . . ." Unable to gain possession of the fanny pack, Arango punched Munoz "about two times" in the upper chest area. Munoz "moved back as to avoid [Arango's] blows" and "felt a blow to my head, and it was from the man." "I became dizzy, and my head was hurting a lot." Munoz put his hand at the base of his skull "so they wouldn't hit me there anymore," and the man hit him again, this time on the hand. Munoz told the jury "I was able to see his face when I turned around to see who was hitting my head." It was the same man. The man "was saying something in English" but Munoz "didn't really understand what he was telling me," because he speaks no English. As Munoz yelled up to Luis for help, Arango yanked a thick gold chain from Munoz's neck, and she and the man fled. The second woman had already left.
Munoz did not call the police right away "[b]ecause I just wanted to forget about it . . . ." He took a shower and, about half an hour after the attack, left the apartment with Luis to pick up some pain pills from a cousin who lived nearby. Julissa had come home by then, and she walked with them.
They had walked several blocks when they happened upon Arango, who was standing on the sidewalk talking to a man. He was not the man who had hit Munoz. Munoz told Luis that Arango was the woman who had attacked him. Munoz called the police on his cell phone. He "kept [his] distance" as Julissa and Luis tried to detain Arango by asking for a cigarette, but Arango ignored them and walked away. The three trailed Arango, with Munoz remaining on the phone and attempting, through an interpreter, to describe what had happened while simultaneously keeping the 911 dispatcher apprised of his and the suspect's ever-changing location. After following Arango for "maybe five" blocks, they saw her meet up with a man who was "sitting on the sidewalk" behind a car. Munoz recognized him as the man who had hit him. The man had taken his sweater off, but Munoz recognized him "[t]hrough his face."
The man "got up and walked away" with Arango. The man and Arango "started going back up in the direction where [Arango] had come from," and Munoz lost sight of them after about a block. "That's when the police arrived there with me."
A few blocks away, meanwhile, other officers were detaining defendant and Arango. Munoz did not see that.
Officer Salvador Reynaga interviewed Munoz, with Officer Patricia Perez translating. Perez then transported Munoz to the detention site "to see if he could identify the suspects." There were "three or four" patrol cars at the scene, parked one behind the other. Defendant and Arango, both handcuffed, were standing together seven to 10 feet away from the patrol cars as two officers stood nearby. Perez read Munoz "an infield show-up advisement" in Spanish, which Munoz said he understood. Remaining in the back of Perez's patrol car, "afraid that they were going to see him," Munoz identified defendant and Arango as his assailants. Munoz's gold chain was never recovered.
Perez is a certified Spanish language interpreter.
At trial, Munoz identified defendant as his assailant. The defense theory of the case was that Munoz's eyewitness identification testimony was not credible. Defense investigator Alejandro Ferrer testified that he interviewed Munoz on September 3, 2009. "Some parts" of Munoz's trial testimony were consistent with what he had told Ferrer during the interview, and "some parts of it weren't." The defense attacked Munoz's credibility on other grounds as well, including his claimed inability to speak any English. Ferrer, who is a certified Spanish language interpreter, "never ha[d] tried to talk to [Munoz] in English." Ferrer had encountered Munoz at the court earlier that day and had asked him, in Spanish, whether he spoke some English. Munoz had replied that he "does speak some English[,] enough to get around, and . . . understands more than []he speaks."
Munoz was then recalled and asked whether he had spoken with defendant's trial counsel in English earlier that morning at the courthouse. Counsel asked whether Munoz had "admitted to me well, you do speak some English?" Munoz responded, "You just asked me if my chef [his boss] knew that I spoke English. [¶] I understood that of you, and I said yes."
The defense rested without calling additional witnesses. Defendant was convicted and placed on three years' probation. He filed a timely notice of appeal.
II. Discussion
A. Alleged Instructional Error
Defendant contends the court prejudicially erred and violated his constitutional rights to due process and trial by jury when it instructed the jury with CALCRIM No. 3518 instead of CALCRIM No. 3517 because the former, which lists four verdict options, omits the option of outright acquittal. He concedes that this error "by itself, was not necessarily sufficient for a reversal" but claims the court put a "gloss" on it that "effectively directed a verdict against [defendant]" when it added parenthetically, as it read the instruction, that "[t]here are four possibilities here, and I'll just list them." That remark, defendant argues, "amounted to a direction that the jury disregard [the reasonable doubt instruction] as it made its way through the verdict forms."
CALCRIM No. 3517 includes a fifth option: "If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater or lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for not guilty of the lesser crime." (CALCRIM No. 3517.)
The Attorney General appears to concede that it would have been preferable for the court to have instructed the jury with CALCRIM No. 3517. She argues, however, that any error was harmless. We agree with the Attorney General.
Instructional errors do not merit appellate relief unless there is a " 'reasonable likelihood' " that the instructions as a whole misled the jury to the defendant's prejudice. (Boyde v. California (1990) 494 U.S. 370, 380 (Boyde); People v. Kelly (1992) 1 Cal.4th 495, 525-526 (Kelly).) The question here, then, is whether there was a "reasonable likelihood" that the instructions as a whole led the jury to believe it could not acquit defendant of both the greater and the lesser crimes but had to find him guilty of one or the other, even if it harbored a reasonable doubt. (Boyde, at p. 380; Kelly, at pp. 525-526.) We must assume that jurors are intelligent people who are capable of understanding, correlating, and following all instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
Here, the trial court orally instructed the jury pursuant to CALCRIM No. 3518 that "If all of you find that the defendant is not guilty of the charged crime of robbery, you may find him guilty of a lesser crime of attempted robbery if you're convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both the greater and a lesser crime for the same conduct. [¶] The lesser offense to robbery is attempted robbery, in violation of Penal Code Section [664/211]. [¶] It's up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty to a lesser crime only if you have found the defendant not guilty of any corresponding greater crime. [¶] You will receive a verdict form for the charged for the charged crime of robbery, and attached to [it] is a verdict form for the lesser offense. Follow these directions before you give me any completed and signed final verdict form. Return any unused verdict form to me unsigned. [¶] There are four possibilities here, and I'll just list them: One, if all of you find the defendant guilty of the charged crime, robbery, complete and sign the verdict form finding him guilty for that crime. Do not complete or sign the verdict form for the lesser offense of attempted robbery. [¶] Two, if all of you find the defendant not guilty of the charged crime and also all agree he's guilty of the lesser crime of attempted robbery, complete and sign the verdict form finding him not guilty of the charged crime, robbery, and complete and sign the verdict form finding him guilty of the lesser crime, attempted robbery. [¶] Three, if all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the charged crime, robbery, inform me only that you cannot reach agreement as to that count and do not complete or sign any verdict form for that count. [¶] Four, if all of you find the defendant not guilty of the charged crime, but cannot agree on a verdict for the lesser offense of attempted robbery, complete and sign the verdict form finding him not guilty of the charged crime. Do not complete or sign the other verdict form for that count. Inform me only that you cannot reach agreement as to the lesser offense of attempted robbery." (Italics added.) The printed instruction that the jurors took into the jury room did not include the judge's parenthetical comment (which we have italicized above).
We note that the very first line of CALCRIM No. 3518 told the jury that it could not convict defendant of the lesser crime of attempted robbery unless it was "convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime." The jury was also instructed pursuant to CALCRIM No. 220 that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] . . . [¶] . . . Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." Jurors were also instructed pursuant to CALCRIM No. 224 that "[b]efore you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." They were also instructed pursuant to CALCRIM No. 315 that "[t]he People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met that burden, you must find the defendant not guilty." Taken as a whole, the jury instructions properly explained the presumption of innocence, the burden of proof, and reasonable doubt.
In sum, the instructions as a whole properly communicated the presumption of innocence and the necessity of proof by the prosecution beyond a reasonable doubt. In our view, it was not only not "reasonably likely" but extremely unlikely that the jury would have understood CALCRIM No. 3518 and/or the judge's parenthetical comment as a directive to "disregard" the reasonable doubt standard. We reject defendant's contention that the giving of CALCRIM No. 3518 misled the jury to his prejudice. (Boyde, supra, 494 U.S. at p. 380; Kelly, supra, 1 Cal.4th at pp. 525-526.)
The cases on which defendant relies do not compel a different conclusion. People v. Olguin (1981) 119 Cal.App.3d 39 (Olguin)is distinguishable. Charged with assaulting two peace officers, Olguin was convicted of resisting, delaying, or obstructing arrest, lesser offenses included in the crime of assault. (Olguin, at p. 41.) Since there was evidence the officers used excessive and unreasonable force, the jury was instructed that he was entitled to acquittal on the charged offenses if it found he used reasonable force to defend himself. The jury was not instructed, however, that Olguin was entitled to acquittal on the lesser included offenses as well if the jury found he used only reasonable force to defend himself against excessive force. Indeed, the instructions "and the manner in which they were given" compelled the Court of Appeal to conclude "that the jurors were led to believe that the defense of use of reasonable force to resist excessive force applied only to the charged battery counts" and not to the lesser resisting arrest counts. (Olguin, at p. 47, italics added.) That problem was exacerbated by the trial court's response to a jury note, which repeated the instructions without explaining that Olguin would be entitled to an acquittal on all charges if the jury found that the officers used excessive force and Olguin used reasonable force to defend himself. (Olguin, at pp. 47-48.) These problems were further exacerbated when the trial court gave the CALJIC equivalent of CALCRIM No. 3518, which did not include the option of an outright acquittal. (Olguin, at p. 48.)
This case is different. The challenged instruction here, unlike the instructions challenged in Olguin, did not affirmatively mislead the jury. There was no compounding of error here, as there was in Olguin. Instead, the instructions as a whole told the jury they could not find defendant guilty if they had a reasonable doubt about his culpability. The jurors did not express confusion here, as they did in Olguin, nor did the trial court respond confusingly, as it did in that case. Defendant's reliance on Olguin is misplaced.
Although neither side references it, the record includes a juror note asking, "Your Honor, If I have any doubt can I provide a guilty verdict[?]" To the extent this note expressed any confusion about CALCRIM No. 3518, we think that confusion would have been cured by the trial court's response: "Please consult reasonable doubt instruction."
In People v. Schindler (1972) 23 Cal.App.3d 369 (Schindler), the trial court instructed the jury that " '[t]he only finding upon which a not guilty verdict may be made is the basic charge of murder.' " (Schindler, at p. 377.) The court later repeated this erroneous instruction: " 'The only not guilty finding, if there is a finding to that effect[,] is on the basic charge of murder.' " (Ibid.) In effect, the court instructed the jury that if it could not agree on the murder charge, "its only options were to find [Schindler] guilty of voluntary or involuntary manslaughter." (Schindler, at p. 378.) The four verdict forms compounded the error by giving jurors a choice of " '[1] guilty of murder . . . in the second degree'; [2] 'guilty of voluntary manslaughter'; [3] 'guilty of involuntary manslaughter'; and [4] 'not guilty of murder as charged in the information.' " (Schindler, at p. 377.) Schindler is distinguishable. Here, unlike in Schindler, the court did not affirmatively misinstruct the jury, and the jury was given verdict forms that included a "not guilty" option on the lesser included offense of attempted robbery. Schindler is inapposite.
In Powell v. Galaza (9th Cir. 2003) 328 F.3d 558, a jury instruction "improperly removed . . . the only contested issue . . . from the jury's consideration and in effect commanded a directed verdict for the state," and the other instructions "were inadequate to undo the damage . . . ." (Id. at pp. 563-564.) Nothing like that occurred here. Contrary to defendant's assertion, the trial court did not "fail" to instruct the jury "as to the option of outright acquittal." CALCRIM No. 220 expressly informed them that unless the evidence proved defendant guilty beyond a reasonable doubt, he was "entitled to an acquittal" and the jury "must find him not guilty." (Italics added.) The verdict forms, moreover, included "not guilty" options for both the charged and the lesser included offenses.
In People v. Miller (1962) 57 Cal.2d 821 (Miller),the trial court instructed the jury that " '[a]lthough there are two degrees of murder, the evidence in this case is such that either [Miller] is innocent of the charge of murder or he is guilty of murder in the first degree.' " (Miller, at p. 828.) This "left the jury with no alternative in fixing [Miller's] guilt, if it found him guilty of a homicide at all, except to find him guilty of first degree murder." (Ibid.) The erroneous instruction "completely ignored the issue of self-defense raised by [Miller] and took from the jury the alternatives of second degree murder and manslaughter, either of which verdicts would find support in the evidence." (Ibid.) Miller is inapposite.
B. Ineffective Assistance of Counsel
Defendant contends his trial counsel was prejudicially ineffective in failing to move to suppress Munoz's eyewitness identification testimony, which he argues "was the result of a suggestive showup and the fact that a DA staff member showed Munoz a photograph of [defendant] shortly before trial."
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, at p. 687.) "Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Ibid.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) A court deciding an ineffective assistance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. (Id. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Ibid.)
1. The In-Field Showup
a. Background
The "infield show-up advisement" that Perez read to Munoz in Spanish told him that "in a few minutes I'm going to show you a person or persons who may or may not be responsible for the crime. The fact that this person is or these persons are in custody or handcuffed should not influence your judgment. You're not obligated to make an identification. It is just as important to free the innocent from suspicion as to identify the guilty." Perez testified that Munoz "seemed to understand" the admonishment, and when she asked him "if he understood what I was telling him," he told her that he did. From the back of Perez's patrol car, Munoz identified defendant and Arango as his assailants. At trial, he testified that he was "sure" when he identified them. He "had no doubt."
b. Analysis
Defendant contends the in-field showup was "blatantly and unnecessarily suggestive" because he was "presented to Munoz for identification . . . without other male subjects," "handcuffed in the street next to a person who Munoz believed to be the female perpetrator, 7-10 feet away from three police vehicles." He adds that the showup "was conducted in the same area where the charged incident occurred, strongly suggesting that the police had apprehended the right suspect." We are not persuaded that these facts rendered the identification procedure unreliable.
A defendant has the burden of showing an unreliable identification procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) " 'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; 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 criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.' [Citation.] In other words, '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claims ends.' [Citation.]" (Ochoa, at p. 412; Neil v. Biggers (1972) 409 U.S. 188, 199-200 (Biggers).)
" '[T]he "single person showup" is not inherently unfair.' [Citation.] . . . [F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure." (Ochoa, supra, 19 Cal.4th at p. 413, fn. omitted.) " 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' [Citation.]" (Ibid.; Biggers, supra, 409 U.S. at p. 198.)
Here, there is no evidence in the record that Perez or any other officer suggested to Munoz that defendant and Arango were, in fact, his assailants. Quite the contrary; Munoz was admonished in Spanish before the showup that the suspects he was about to view "may or may not be responsible for the crime." (Italics added.) Munoz was further informed that he was not obligated to make an identification, and that it was "just as important to free the innocent from suspicion as to identify the guilty." He told Perez that he understood the admonishment. In these circumstances, the fact that defendant was the only male suspect did not render the in-field showup unduly suggestive.
The cases defendant relies on do not compel a different conclusion. In People v. Nation (1980) 26 Cal.3d 169, three young girls looked at mug shots to see if they could identify the man who had attempted to rape one of them two weeks earlier. (Id. at p. 174.) Police made "[n]o effort" to separate the girls at the station, and the girls "felt constrained to select one of the mug shots as the assailant." (Id. at p. 180.) Their eventual selection of the defendant's photo "was a product of 'mutual reinforcement of opinion' among [them] [citation]." (Ibid.)Police permitted them to take that mug shot home for a week to show others, including one of their mothers, who had not witnessed the crime, but claimed to have received lewd comments on the day of the attack near the school where it later occurred. (Id. at p. 174.) At a physical lineup some four months after that, the mother identified the defendant, and police told the group she had selected the "right" man, while the girls had selected the "wrong" man. (Ibid.) Nothing like that occurred here.
In Foster v. California (1969) 394 U.S. 440, the victim was unable to positively identify the defendant in a three-person physical lineup a day or more after the robbery, although the defendant was considerably shorter than the other two men and wore a leather jacket like the one the robber had worn. (Id. at pp. 441, 443.) After a one-on-one confrontation with the defendant, the victim was still "not sure." (Id. at p. 441.) At another physical lineup a week or so later, the defendant was the only person who had appeared in the first lineup. (Id. at p. 441.) This time, the victim was "convinced" that the defendant was the man who had robbed him. (Id. at pp. 441-442.) "In effect," the court held, "the police repeatedly said to the witness, This is the man.' " (Id. at p. 443.) Here, by contrast, the showup was conducted only an hour or so after the robbery, Munoz was properly admonished, and he identified defendant right away.
In People v. Sandoval (1977) 70 Cal.App.3d 73, the victim saw " 'the back' of her assailant as he was running across the parking lot" with her purse. (Id. at p. 79.) She had seen a man in a crosswalk as she left the store, but she had only " 'glanced up' " at his face for a second or two and " 'didn't pay attention to him.' " (Ibid.) She was waiting in a room at the police station when police told her the suspect would be brought through a particular hallway "because they were bringing others through another way." (Id. at p. 85.) She identified him as the man she had seen in the crosswalk, and another witness who was waiting in the same room told police that he was wearing " 'the same clothes' " she had seen on the purse snatcher. (Id. at p. 80.) At trial, the victim "affirmed" that when she saw the defendant in the hallway, "she 'understood' that he was the man the police 'thought' had 'snatched' her purse," and she also "acknowledged that the fact that the police showed the defendant to her at the station 'helped' her make her in-court identification by 'cementing the man's face in [her] memory.' " (Id. at p. 85.)
This case is different. Here, Munoz could not have believed the police "thought" defendant and Arango were in fact his assailants, because they asked him to confirm whether they were the persons he had been following—the persons he had happened on and identified as his assailants before he reported the robbery.
Defendant next complains that he was handcuffed, with police officers and their vehicles nearby. Those circumstances seem inherent in any in-field showup, however, and it has been held that "the mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification." (In re Carlos M. (1990) 220 Cal.App.3d 372, 386; In re Richard W. (1979) 91 Cal.App.3d 960, 969-970 (Richard W.) [that suspects were "handcuffed inside a police car with officers standing around" outside hotel where robbery had just occurred did not render in-field identification procedure impermissibly suggestive].) Defendant also complains that the showup was conducted just blocks from where the robbery occurred, which "strongly" suggested that he was the right suspect. The police were not required to transport defendant to a neutral location for the showup. (See Richard W., at p. 970 ["Appellant overlooks the fact that the law favors field identification measures when in close proximity in time and place to the scene of the crime."].)
Finally, defendant complains that the in-field showup was unnecessary, because "Munoz was not seriously injured during the incident and neither []he nor [defendant] was likely to become unavailable." We reject the contention. As this court has previously held, "Prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty is a valid purpose for conducting a one-person showup [citation], and is likely to be more accurate than a belated identification days or weeks later [citation]." (People v. Martinez (1989) 207 Cal.App.3d 1204, 1219.) The in-field identification procedure here was not unduly suggestive or unnecessary.
2. Allegedly Tainted In-Court Identification
a. Background
At trial, Munoz testified that "[s]omeone" (possibly an investigator or perhaps the district attorney's victim witness advocate) had previously shown him "a picture of the girl and [defendant]." He could not remember when he had seen "the piece of paper" or who had shown it to him. The picture Munoz said he had seen was admitted into evidence as People's exhibit 2 and Defendant's exhibit E; both exhibits were the same picture. The picture shows a few pimples or moles on defendant's cheeks and a much more prominent pimple on his forehead. Munoz testified on cross-examination that defendant "had like pimples" on his cheeks, but "[n]ot that many." He had not previously mentioned the pimples.
b. Analysis
Defendant contends that Munoz's in-court identification testimony was further and "irreparably tainted when, the day before trial, a district attorney's office employee showed Munoz a photograph of [defendant] as he appeared on the date of the charged incident." "On this record," he asserts, "it cannot be said that under the totality of the circumstances, the in-court identification by Munoz was independently reliable." We disagree.
All of the relevant factors here—the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation—weigh in favor of reliability. (Biggers, supra, 409 U.S. at pp. 199-200; Ochoa, supra, 19 Cal.4th at p. 412.)
First, Munoz had a meaningful opportunity to view defendant "at the time of the crime" (Ochoa, at p. 412). He passed defendant and Arango on his way home from the bus stop, and as he did so, he looked at them. Although it was around midnight, "[i]t wasn't that dark," and Munoz's testimony reflected that he could see just fine. He got a better look at his assailants when Arango approached him outside the apartment. He could see her face and the faces of her two companions, and he testified that he would have been able to describe them. Munoz saw defendant's face even closer up "when I turned around to see who was hitting my head." Munoz saw defendant again after the robbery, when defendant met up with Arango on the street, and Munoz recognized him as the same person "[t]hrough his face."
The second factor also weighs in favor of reliability. Although Munoz was not paying particular attention and did not turn around to look at defendant the first time he saw him on the street, the fact that he turned around during the robbery to see who had just hit him in the back of the head indicated a high level of attention. In our view, the fact that defendant "was saying something in English" that Munoz "didn't really understand" is another indication that Munoz's level of attention would have been high.
Defendant argues that it was very dark when the robbery occurred, and "Munoz's claim that []he could see the man in a reflection from a second story window makes no sense [because] []he and the attacker were standing on the ground." But Munoz did not testify that he saw his attacker's reflection in the window. Instead, he testified that he could see his attacker "because of the reflection of my window." (Italics added.) We understand his statement to mean that light from his apartment upstairs was reflected outside, illuminating to some extent the area where he stood below the window. Luis testified that he had been watching television in the bedroom, which faced the street, as he waited for Munoz to come home from work. Although Luis did not recall whether the bedroom light was on or off, we think an inference can be drawn from Munoz's testimony that it was on.
Defendant contends that the third factor is problematic because the accuracy of the description Munoz gave the 911 dispatcher was "limited to [defendant's] ethnicity (Hispanic) and his black jacket." We do not find this particularly troubling. Munoz was attempting to answer the 911 dispatcher's questions through a translator, and we cannot fault him for not answering questions that the dispatcher failed to ask. We note that the dispatcher initially focused on the female suspect, asking for her ethnicity, but nothing else. It was Munoz who volunteered, "Do you want me to tell you how she is dressed?" He told the dispatcher the female suspect was wearing a gray sweatshirt with a hood and blue jeans. It wasn't until later in the 17-minute conversation that the dispatcher asked about the ethnicity of the male suspect. Once again it was Munoz who volunteered that "the guy has on a, a sweater/sweatshirt that's like black and it's opened in the front . . . ."
Defendant emphasizes the "discrepancy" between what Munoz described as a "black" jacket and the jacket or sweater defendant was wearing when he was apprehended, arguing that it was not black but "checkered or plaid with a light colored background." We do not find this "discrepancy" material. Officer Reynaga, who was the first to spot the suspects after the 911 dispatcher broadcast their descriptions, testified that when he wrote his report, "I described it as a black sweater." "From a distance it looked black." Even on "[c]loser inspection," Reynaga testified, "it's still relatively more black than any other color." We have viewed People's exhibit 2, and we find Reynaga's and Munoz's descriptions more apt than defendant's. Exhibit 2 is a head shot of defendant wearing a dark gray crew neck sweatshirt and what appears to be a black, dark gray, light gray, red, and white plaid flannel or wool jacket with a gray shearling collar and/or lining.
Defendant argues that the photograph Munoz viewed tainted his in-court identification testimony, noting that he testified that his attacker "had pimples just like [defendant] did." It is true that, when pressed on cross-examination for more details about defendant's appearance, Munoz mentioned "pimples" for the first time. However, he said the pimples were on defendant's cheeks. Had he been influenced by the photograph, we think he would have mentioned the far more prominent pimple that the photograph shows on defendant's forehead. Had he been influenced by the photograph, we think Munoz would have also mentioned the small mustache that the photograph clearly shows. He made no mention of the forehead pimple or the mustache.
The fourth factor, the level of certainty demonstrated at the confrontation, also weighs in favor of reliability. Seated in Perez's patrol car, Munoz identified both defendant and Arango as his assailants. Perez "confirmed again and asked if that was them, and [Munoz] said yes." She noted that Munoz was "afraid that they were going to see him," which suggests to us that Munoz was very confident that he had in fact identified his attackers. Munoz told the district attorney's investigator he was "[a] hundred percent" certain he had identified his attackers. Munoz testified that he was "sure" and "had no doubt" that Arango and defendant were his assailants. But, defendant argues, this factor "should be given little weight in light of Munoz's demonstrated tendency to exaggerate and even lie under oath." Even if this factor is "given little weight," it provides no support for a finding that Munoz's identification was unreliable.
The fifth factor, the time between the crime and the confrontation, unquestionably weighs in favor of reliability, since the identification was made not more than two hours after the robbery occurred.
On this record, we discern no possibility that a motion to exclude Munoz's in-court identification as the unreliable product of an impermissibly suggestive in-field showup would have succeeded. It follows that defendant's trial counsel was not ineffective for failing to make such a motion. (People v. Memro (1995) 11 Cal.4th 786, 834 [the Sixth Amendment "does not require counsel ' "to waste the court's time with futile . . . motions" ' "], overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
C. Probation Conditions
Defendant contends that four of his probation conditions are unconstitutionally vague and overbroad and must be modified.
1. No-Firearms Condition
One of the conditions of defendant's probation requires him to "[n]ot possess, receive, or transport any firearm, ammunition, or any deadly or dangerous weapon." Defendant contends the condition must be modified to include a knowledge requirement. We agree.
Relying on People v. Welch (1993) 5 Cal.4th 228, 237 (Welch), the Attorney General argues that defendant forfeited his claim by failing to object below. We disagree. The general rule articulated in Welch does not extend to a facial challenge to a probation condition on constitutional grounds of vagueness and overbreadth if the issue presents a pure question of law that can be corrected without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).) Defendant raises such a challenge here.
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"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions [citation].' " (Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Ibid.)
The no-firearms condition the court imposed here does not satisfy the due process concept of fair warning. The absence of a knowledge requirement subjects defendant to unfair risk that his probation could be revoked if, for example, he unknowingly transports ammunition or a handgun while helping a friend move, or travels in a car with someone who, unbeknownst to him, is lawfully carrying a weapon or ammunition in the trunk or in a purse or suitcase.
In People v. Freitas (2009) 179 Cal.App.4th 747 (Freitas), the court modified a no-firearms condition to specify that the defendant could not knowingly possess or have custody or control of firearms or ammunition. (Freitas, at p. 752.) The court reasoned that "[a] requirement of knowledge should be read into the probation condition for the same reason knowledge is required by CALCRIM No. 2510: the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition." (Freitas, at p. 752.) We agree. The no-firearms condition must be modified to specify that defendant must "not knowingly possess, receive, or transport any firearm, ammunition, or any deadly or dangerous weapon."
2. No-Drugs Condition
Another condition of defendant's probation requires him to "not use or possess alcohol, narcotics, intoxicants, drugs, or other controlled substances without the prescription of a physician; not traffic in or associate with persons known to you to use or traffic in narcotics or other controlled substances." Defendant contends the condition must be modified in two respects: to include a knowledge requirement and to insert the adjective "illegal" before "drugs." We agree.
The condition must be modified to include a knowledge requirement because without it, the condition could punish defendant for unwitting conduct. (See Freitas, supra, 179 Cal.App. 4th at pp. 751-752; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102 [scienter requirement in probation conditions "should not be left to implication"].)
The condition must be further modified to clarify that defendant may not use or possess illegal drugs. We disagree with the Attorney General's contention that the condition as worded "clearly" does not pertain to aspirin. The Attorney General appears to assume that "controlled substances" is the larger category, and "alcohol, narcotics, intoxicants, [and] drugs" are subcategories included within it. But that assumption fails because alcohol is not a controlled substance. Thus, the no-drugs condition as written can be read to include within its ambit legal, nonprescription medications like aspirin and cough medicine. There is no indication in the record that the court intended any such result. Because the no-drugs condition is not " 'sufficiently precise' " for defendant to know what is required of him or for a court to determine whether the condition has been violated (see Sheena K., supra, 40 Cal.4th at p. 890), it must be modified to insert the adjective "illegal" before "drugs."
3. No-Association Condition
Another condition of defendant's probation requires him "not to associate with any individuals you know or suspect to be drug users or on any form of probation or parole supervision." Defendant contends this condition is invalid "because it is not narrowly drawn and contains no clear guidelines for identifying individuals whom [defendant] should 'suspect' to be drug users, probationers or parolees." He contends, and the Attorney General concurs, that the "or suspect to be" language must be stricken from the condition.
We agree. In People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel), we held that inclusion of the word " 'suspect' " in a condition requiring the probationer to avoid associating " 'with any individuals you know or suspect to be gang members, drugs users, or on any form of probation or parole supervision' " rendered the condition insufficiently precise for a court to determine whether a violation had occurred. (Id. at p. 1073, italics added.) In Gabriel, we modified the condition to delete the "or suspect to be" language. (Id. at p. 1074.) We do the same here.
4. Stay-Away Condition
Another condition of defendant's probation requires him to "[s]tay at least 100 yards away from [Munoz], his residence, any vehicle he owns or operates, or [his] place of employment." Defendant argues, and the Attorney General concurs, that the condition must be modified to include a knowledge requirement. We agree that the condition, which as currently worded could punish defendant for unwitting conduct, must be modified to include a knowledge requirement. (See Freitas, supra, 179 Cal.App. 4th at pp. 751-752; Garcia, supra, 19 Cal.App.4th at p. 102.).
III. Disposition
The no-firearms condition of probation is modified to read, "Not knowingly possess, receive, or transport any firearm, ammunition, or any deadly or dangerous weapon."
The no-drugs condition of probation is modified to read, "not knowingly use or possess alcohol, narcotics, intoxicants, illegal drugs, or other controlled substances without the prescription of a physician; . . . ."
The no-association condition of probation is modified to read, "You're not to associate with any individuals you know to be drug users or on any form of probation or parole supervision."
The stay-away condition of probation is modified to read, "Do not knowingly come within 100 yards of Humberto Munoz, his residence, any vehicle he owns or operates, or any place at which he is employed."
As modified, the order of probation is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Duffy, J.