THE PEOPLE, Plaintiff and Respondent, v. JARON EMEL DANIELS, Defendant and Appellant.
Defendant and appellant Jaron Emel Daniels appeals from the judgment entered following a jury trial that resulted in his convictions for robbery. Daniels was sentenced to a prison term of 32 years 4 months. Daniels's sole contention on appeal is that one of his convictions must be vacated because the trial court erred by denying his motion to suppress identification evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
a. People's evidence.
Viewed in accordance with the principles governing appellate review, the evidence relevant to the issues presented on appeal was as follows.
(i) Robbery of Hashem Alzubi.
On August 6, 2009, at approximately 4:15 p.m., Hashem Alzubi, a Lancaster taxicab driver, received a dispatch to pick up a fare named “Lily” on Cedar Avenue in Lancaster. When he arrived, Daniels approached and told Alzubi he was the person who needed a cab. After driving Daniels to a gas station and back to the original pickup point, Alzubi asked for a deposit on the fare. Instead of paying, Daniels pointed a black, semiautomatic gun at Alzubi's face and demanded all Alzubi's money. Alzubi handed over his cash; Daniels took his cellular telephone and radio as well. Daniels then told Alzubi to drive away before he killed him. Alzubi complied, and telephoned police.
On August 24, 2009, Alzubi saw Daniels at a Metrolink station and alerted police. Daniels was detained, and Alzubi identified him as the robber in a field showup. A “durag,” or head wrap, was found on Daniels's person.
(ii) Robbery of David Ayala.
David Ayala was a delivery person for “Mr. Wok's,” a Lancaster restaurant. On August 8, 2009, at approximately 5:10 p.m., he was dispatched to make a delivery at unit “zero” at an apartment complex located on Cedar Avenue. The dispatcher informed Ayala that the customer was going to pay with a $100 bill. Ayala searched, but could not find an apartment numbered zero in the complex. Eventually, Daniels approached and stated he had placed the order. Ayala gave Daniels the food, and Daniels asked for change. When Ayala told Daniels that he needed to pay for the order before receiving change, Daniels reached in his pocket, pulled out a gun, and told Ayala to give him money if he valued his life. Ayala complied. Daniels told Ayala to drive away and not look back.
After driving a short distance, Ayala called police. As he was driving to meet officers, he observed Daniels crossing the street. Daniels saw the car, turned, and ran.
Ayala described the robber as a light skinned Black male, in his 30's, approximately 5 feet 6 inches, weighing approximately 170 pounds. He was wearing a “bluish” durag, a white and blue striped polo shirt, blue jeans, and brown gloves. His hair was braided in cornrows. He had a mustache and a goatee. Ayala identified Daniels in a pretrial photographic lineup, at the preliminary hearing, and at trial.
(iii) Other evidence.
The People presented evidence showing Daniels pleaded guilty to robbing a Ralph's Market cashier in January 2002.1
b. Defense evidence.
Daniels presented the testimony of Dr. Mitchell Eisen, an eyewitness identification expert, in an effort to cast doubt on the accuracy of the witnesses' identifications.
Trial was by jury. Daniels was convicted of the first degree robbery of Alzubi and the second degree robbery of Ayala. (Pen.Code, § 211.) 2 The jury found Daniels personally used a firearm during commission of both crimes (§ 12022.53, subd. (b)). In a bench trial on the prior conviction allegations, the court found Daniels had suffered a prior conviction of a serious or violent felony (§§ 667, subds.(a)(1), (b)-(i), 1170.12, subds. (a)-(d)). It denied Daniels's Romero motion 3 to strike the prior conviction allegation and sentenced him to a term of 32 years 4 months in prison. It imposed a restitution fine, a suspended parole restitution fine, court security assessments, and criminal conviction assessments. Daniels appeals.
The pretrial photographic lineup was not suggestive; the identification was reliable under the circumstances.
a. Additional facts.
Prior to trial, the defense sought to exclude Ayala's identification of Daniels in the six-pack photographic lineup, as well as his identification of Daniels at the preliminary hearing, on the ground the pretrial photographic lineup was unconstitutionally suggestive. In particular, Daniels complained that he was the most light-skinned of the individuals depicted, and that the detective who conducted the lineup procedure had inappropriately suggested the perpetrator was included therein. The trial court denied the motion. It concluded that the differences in skin tone did not cause Daniels's photograph to stand out, and the comments allegedly made by the detective did not taint the lineup procedure. Daniels contends this was error.
“ ‘Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.’ “ (People v. Avila (2009) 46 Cal.4th 680, 698; Manson v. Brathwaite (1977) 432 U.S. 98, 106–114; People v. Yeoman (2003) 31 Cal.4th 93, 123.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Carter (2005) 36 Cal.4th 1114, 1164; People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “The question is not whether there were differences between the lineup participants, but ‘whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ “ (People v. Avila, supra, at p. 698; People v. Carpenter ( 1997) 15 Cal.4th 312, 367, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Yeoman, supra, at p. 124.) An identification procedure is sufficiently neutral where the subjects are “ ‘similar in age, complexion, physical features and build ․’ [citation].” (People v. Leung (1992) 5 Cal.App.4th 482, 500; see generally People v. Johnson (2010) 183 Cal.App.4th 253, 272; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082–1083; People v. Wimberly (1992) 5 Cal.App.4th 773, 789–790.)
The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Gonzalez (2006) 38 Cal.4th 932, 942.) Unfairness must be proved as a “ ‘demonstrable reality, not just speculation.’ “ (People v. Cook (2007) 40 Cal.4th 1334, 1355.) A due process violation occurs only when the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Ibid.) We review the trial court's findings of fact deferentially, but independently review the trial court's ruling that a pretrial identification procedure was not unduly suggestive. (People v. Avila, supra, 46 Cal.4th at pp. 698–699; People v. Gonzalez, supra, at p. 943.)
The pretrial photographic lineup at issue here was not suggestive. It consists of color photographs of six different men, including Daniels, from the shoulders up. All are Black; all have similar hairstyles; all appear to be about the same age; and all have goatees and mustaches. Daniels's photograph does not “stand out” from the others in a way that would have suggested the witness should select him. (See People v. Johnson, supra, 183 Cal.App.4th at p. 272 [lineup not suggestive where all five subjects were Black, were of a similar age, complexion, and body type, wore similar clothing, and had similar hair]; People v. Ybarra, supra, 166 Cal.App.4th at p. 1082 [lineup not suggestive where six subjects were all young male Hispanics with similar shaved heads, heavy builds, and some facial hair].)
Daniels argues the photographic lineup was suggestive for three reasons: (1) his photograph was “larger than all the others”; (2) his skin was “markedly lighter” than that of the other subjects; and (3) the subject in position 6 appeared to be “considerably younger” than he. Further, he asserts that comments made by Detective Bradley Feehan, the officer who conducted the photographic lineup procedure, potentially increased the “prejudicial impact” of the lineup.
Daniels's first argument fails both factually and as a matter of law. Contrary to his assertion, Daniels's photograph is not larger than the other photographs; all six are the same size. It is true that Daniels's face appears slightly larger than the faces of the subjects in photographs 1, 4, and 6. This, however, did not result in a suggestive lineup. The size of Daniels's face is comparable to that of the subjects in positions 2 and 5. The difference in face size among the subjects is slight and barely noticeable, and would not have telegraphed to a witness that police suspected Daniels of the crime. Daniels's argument that his photograph “dominate[d]” the lineup is not factually accurate. In any event, as Daniels acknowledges, differences in image size do not generally render a lineup suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; see generally People v. Carter, supra, 36 Cal.4th at p. 1163.) The difference in the photographs was trivial and immaterial. (People v. Carter, supra, at p. 1163.)
Nor did the differences in the subjects' skin tones result in a suggestive identification procedure. Daniels complains that although Ayala told police the robber was a light-skinned Black man, Daniels was the only light-skinned individual in the photographic lineup. According to Daniels, the only other subject whose skin tone could potentially be described as light was too young to have matched Ayala's description of the robber. We disagree. We do not view any differences in the skin tone of the subjects as significant enough as to have made Daniels's photograph stand out. “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect's photograph is much more distinguishable from the others in the lineup.” (People v. Brandon, supra, 32 Cal.App.4th at p. 1052; People v. Carpenter, supra, 15 Cal.4th at p. 367.) The lineup subjects here appear to have a variety of skin tones. Two of the subjects are darker complected, while the others, including Daniels, have relatively similar complexions. All the subjects are Black, have their hair styled in cornrows, and have mustaches and goatees. Under these circumstances, our review of the lineup “indicates that defendant overstates the significance of the distinguishing characteristics seen in the photographs, and overlooks their more compelling general similarities.” (People v. Carter, supra, 36 Cal.4th at p. 1163.)
Third, contrary to Daniels's contention that he appears “a great deal older” than the subject in position 6, we observe no appreciable age difference. In our view, the two men appear to be roughly the same age.
Nor has Daniels established that the statements of Detective Feehan rendered the photographic lineup suggestive. At the preliminary hearing, Ayala responded affirmatively when asked by defense counsel, “Before [Feehan] showed you [the photographic lineup], did he tell you that he thought they may have caught the person who did this?” Ayala responded affirmatively to a similar question asked by defense counsel during cross-examination at trial. Daniels posits that Feehan's statement improperly tainted the identification procedure by suggesting to Ayala that the robber's photograph would be in the lineup. We disagree. Daniels takes the cited testimony out of context. At the preliminary hearing, Ayala testified Feehan “said that he was going to show me the pictures; that he wasn't sure if it was one of them, but he just wanted me to point one out, if there was one in there that I might recognize.” At trial, Ayala testified that before showing him the photographs, Detective Feehan gave him an admonishment form to read. Ayala read the form, understood that the robber might not be pictured in the lineup, and understood that he did not have to make an identification. Ayala's testimony was corroborated by Detective Feehan, who clarified that he informs witnesses that “no guessing” is allowed and that the witness must be sure before identifying anyone. Feehan had also told Ayala that he did not “have to pick anybody out because we might not have the person involved in your crime. The most important thing is that we get the right person and we don't falsely accuse anybody that is not involved.” Thus, viewing the totality of the testimony, Detective Feehan did not say anything that would have led Ayala to conclude the robber was definitely pictured in the six-pack. In context, the statement that authorities might have caught the robber was not suggestive. In any event, Detective Feehan's statement that officers might have apprehended the perpetrator did not render the lineup suggestive; “[a]nyone asked to view a lineup would naturally assume the police had a suspect.” (People v. Carpenter, supra, 15 Cal.4th at p. 368.)
Finally, even assuming arguendo that the lineup was suggestive––a conclusion we have rejected––the identification was nonetheless reliable. “ ‘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.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. Yeoman, supra, 31 Cal.4th at p. 123; People v. Arias (1996) 13 Cal.4th 92, 168.)
Here, Ayala had a good opportunity to observe the robber. The robbery occurred during daylight hours. Ayala observed Daniels from a few feet away for at least five minutes. During that period he was not distracted, but was concentrating on making the delivery and getting payment from Daniels. After the robbery, Ayala observed Daniels in his rear view mirror. Shortly thereafter, he saw him again, crossing the street. Ayala told a deputy shortly after the robbery that he would be able to identify the robber if he saw him again. He positively and unhesitatingly identified Daniels in the photographic lineup, as well as at trial and at the preliminary hearing. He gave a detailed description of the robber's attire and physical characteristics, as set forth ante, which matched Daniels's characteristics. The identification procedure transpired approximately two and one-half weeks after the robbery, while the event was presumably still fresh in Ayala's mind. (See People v. Kennedy (2005) 36 Cal.4th 595, 611, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) Shortly after the robbery police detained a person other than Daniels, whom they believed matched the robber's description. At a field showup, Ayala told police that individual was not the robber, demonstrating he was not likely to misidentify a suspect merely because the individual was in custody or depicted in a photographic lineup.4
In sum, the lineup was not suggestive and, in any event, Ayala's identification was reliable. The trial court did not err by denying the motion to exclude.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FN1. In the instant case, Daniels was additionally charged with the July 30, 2009 robbery of Kevin Tervort. The jury deadlocked, and a mistrial was declared, on that count, which was eventually dismissed in furtherance of justice. Because Daniels was not convicted of the Tervort robbery, and because analysis of the evidence related to that count is unnecessary to resolution of the issues presented on appeal, we do not discuss it here.. FN1. In the instant case, Daniels was additionally charged with the July 30, 2009 robbery of Kevin Tervort. The jury deadlocked, and a mistrial was declared, on that count, which was eventually dismissed in furtherance of justice. Because Daniels was not convicted of the Tervort robbery, and because analysis of the evidence related to that count is unnecessary to resolution of the issues presented on appeal, we do not discuss it here.
FN2. All further undesignated statutory references are to the Penal Code.. FN2. All further undesignated statutory references are to the Penal Code.
FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.. FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FN4. Given our conclusion, we do not reach the People's contentions that certain aspects of Daniels's claim were waived and that admission of the identification evidence was harmless beyond a reasonable doubt.. FN4. Given our conclusion, we do not reach the People's contentions that certain aspects of Daniels's claim were waived and that admission of the identification evidence was harmless beyond a reasonable doubt.
KLEIN, P. J. KITCHING, J.