PEOPLE v. GUILLEN (1985)

OPINION

Anthony Guillen and Eugene Arnold Valencia were convicted of robbery with an enhancing allegation that Valencia used a knife found to be true and an enhancing allegation that Guillen had previously been convicted of robbery found to be true.   Both were sentenced to the state penitentiary and both appeal.   Guillen contends the trial court erred in (1) admitting his prior conviction for impeachment purposes and (2) refusing to exclude the eyewitness identification.   Valencia contends the trial court erred in denying his motion to suppress the eyewitness identification.

FACTS

Guillen and Valencia jointly committed a robbery of the Buy Rite convenience store in Blythe, California, on November 23, 1982.   Valencia used a knife during the course of the robbery.   The next day Valencia was identified in a single person curbside showup by the victim of the robbery Elias Rios.

Both Guillen and Valencia were identified as the robbers by Virginia Barbosa, an eyewitness to the robbery, at a photographic lineup.

Rios and Barbosa identified Guillen and Valencia as the robbers at the preliminary hearing and at trial.

Valencia testified he did not commit the robbery.   Guillen offered no evidence and did not testify.

DISCUSSION

I

Guillen contends the trial court's determination to admit his prior conviction of robbery without weighing the prejudicial effect against the probative value under section 352 of the Evidence Code was prejudicial error and requires reversal.   Not so.

 The trial court reasoned the plain language of article I, section 28, subdivision (f), of the Constitution allowed the admission of a prior felony conviction for impeachment purposes without resorting to Evidence Code section 352.¹  The trial court did have discretion to exclude the prior felony conviction and the failure to exercise its discretion is error.  (People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.)   The Supreme Court held in Castro at page 306, 211 Cal.Rptr. 719, 696 P.2d 111:  “[A]lways subject to the trial court's discretion under section 352—subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty․”  The court conceded the voters were unhappy with those cases beginning with People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, and ending with People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74, restricting the trial court's discretion to admit felonies for impeachment purposes.   The court then concluded the purpose of the initiative “was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the Antick line of decisions.”  (People v. Castro, supra, 38 Cal.3d at p. 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   Two of these decisions, People v. Rist (1970) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, and People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, found an abuse of discretion where a robbery prior was admitted to impeach a defendant accused of robbery.   Castro makes it clear this restriction is removed and the trial court has discretion to admit any felony demonstrating a readiness to do evil—moral turpitude.

 The trial court was in error in failing to exercise its discretion, but the error was harmless.   The trial court could have correctly exercised its discretion by admitting the prior felony conviction in the case at bench.   Robbery does involve moral turpitude (a readiness to do evil) and Castro would allow its introduction even if the trial involved the same offense.   In addition, the evidence against Guillen was strong.   Guillen and his codefendant were identified as the robbers by the victim Rios.   This identification was confirmed by another eyewitness Virginia Barbosa who identified Guillen and Valencia at a photographic lineup and at trial.   Rios saw Guillen in a phone booth in front of the store just before the robbery.   A latent print lifted from the telephone receiver in the phone booth was Guillen's fingerprint.   The eyewitness identification confirmed by Guillen's fingerprint overwhelmingly indicates he was one of the robbers.   We conclude a result more favorable to Guillen would not have resulted if the prior felony conviction for robbery had not been used to impeach him.²  (People v. Castro, supra, 38 Cal.3d at pp. 318–319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Guillen contends the trial court's determination to admit his prior robbery conviction is more egregious because it prevented him from taking the stand in his own behalf.   He contends this constitutes reversible error per se.

 Rist and Fries established, under the guise of Watson, supra, a rigid reversible per se standard where the defendant did not testify under threat of impeachment by a prior felony conviction.  People v. Almarez, 168 Cal.App.3d 262, 214 Cal.Rptr. 105 (1985) holds this rigid standard survived Proposition 8.   We disagree.

The Supreme Court's avian philosophy in dealing with the admission of priors has made the trial court's exercise of discretion as extinct as the dodo bird.   Perhaps like the phoenix, from the ashes of Rist and Fries that discretion may rise again.  (See People v. Kyllingstad (1978) 85 Cal.App.3d 562, 570–571, 149 Cal.Rptr. 637.)

As Castro points out (38 Cal.3d p. 308, 211 Cal.Rptr. 719, 696 P.2d 111), we should give deference to the clear intent of the voters to remove the rigid standard of Rist and Fries.   Furthermore, to adopt the analysis in Almarez would render Proposition 8 a nullity in this area of impeachment.

We would point out the value of Guillen's testimony is purely speculative.   To hold a defendant's bald statement his testimony would be of some value to the jury constitutes reversible error would encourage and countenance a form of blackmail by the defendant condemned in People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.   A defendant's election not to take the stand does not raise a due process issue as there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes.   (Id., at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)

 The burden of showing the danger of undue prejudice and the need for defendant's testimony in the ascertainment of the truth is on the defendant.   This can be met in three ways:  (1) where it is obvious what the defendant's testimony would be;  (2) by presenting the testimony in an “in camera hearing” with the district attorney excluded (the record could be sealed and made available only to the reviewing court);  and (3) by an election to take the stand and testify.

 Where the defendant does not testify, the court has nothing to evaluate and does not automatically abuse its discretion in denying a motion in limine without making an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect.  (Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.)

The fact that Guillen chose not to testify does not alter our opinion that the error was harmless.  (People v. Watson, supra.)

II

 Guillen contends the trial court erred in admitting the eyewitness' identification implicating him in the robbery because the identification procedures were impermissibly suggestive on two bases.   He first asserts that the circumstances under which codefendant Valencia was subjected to a one-on-one showup about 17 hours after the robbery was unfair.   Guillen argues under People v. Bisogni (1971) 4 Cal.3d 582, 586, 99 Cal.Rptr. 164, 483 P.2d 780, he has standing to object to the identification procedures.   Guillen's vicarious standing to litigate the unfairness of Valencia's one-on-one showup was eliminated by Proposition 8 and In re Lance W. (1985) 37 Cal.3d 873, 885–890, 210 Cal.Rptr. 631, 694 P.2d 744.   Even if Guillen had standing, Valencia's showup was not unfair as will be demonstrated in disposing of Valencia's contentions.   The record demonstrates Rios' in-court identification was based on Guillen's participation in the robbery and not on any suggestive or impermissible procedures.

 Guillen further contends Barbosa's identification was tainted because she and her brother were shown photographs of Guillen at the same time and were not separated.   The record indicates Barbosa and her brother identified Guillen almost simultaneously.   Guillen concludes from this fact, though unsupported by the record, that there can be little doubt Barbosa's identification was supported in her mind by knowledge that her brother had also identified Guillen.   Barbosa testified her observations of Guillen were based on his participation in the robbery, not on her photographic identification.

The trial court found, after a lengthy pretrial hearing concerning the identification of Guillen and Valencia, the controlling case to be Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.   For an identification to be suppressed, photographic and lineup identifications would have to be so unduly suggestive as to have produced a substantial likelihood of irreparable misidentification.   After establishing the standard, the trial court went on to find:

THE COURT:  “I heard the testimony of these witnesses [³ ] as much as you did, and apparently I didn't hear what you heard because it is my belief, and I am making a finding that there was no such irreparable misidentification.”

The record supports this finding, therefore, Guillen's contention that the photographic or one-on-one identification procedures utilized in this matter were unduly suggestive is without merit.

III

Valencia contends the in-field identification was both untimely and highly suggestive requiring it be suppressed.   He also contends he should have been represented by an attorney at the in-field identification, and the failure to provide him with an attorney violated his Sixth Amendment rights.   Neither contention has merit.

 The Sixth Amendment right to counsel, and thus the Wade-Gilbert per se exclusionary rule, does not attach during an in-field identification.  (People v. Savala (1981) 116 Cal.App.3d 41, 48, 49, fn. 2, 171 Cal.Rptr. 882.)   Moreover, a single person showup is not inherently unfair.   While such a showup is a suggestive procedure, the admissibility of any resulting identification depends on whether under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive.   The burden is on Valencia to establish the confrontation resulted in such unfairness that it infringed his right to due process.  (People v. Hunt (1977) 19 Cal.3d 888, 893–894, 140 Cal.Rptr. 651, 568 P.2d 376.)   The trial court had before it the evidence concerning the admonitions and conversations by the police officer with Rios before the identification, the nature and extent of the observations by Rios, and the totality of the circumstances of the curbside identification.   It determined the procedure was legally proper and did not give rise to any misidentification.   Ample evidence supports this conclusion.   Valencia has failed to carry his burden showing pretrial identification was such that there was a substantial likelihood of irreparable misidentification.

 Furthermore, Rios had observed Valencia driving his automobile shortly before being taken to the curbside identification by the police.   Rios was not aware Valencia would be at the traffic stop.   He had not yet advised the police that he had already seen the man who had robbed him earlier that day driving a vehicle.   The traffic stop identification could not possibly taint the identification Rios had already made.   We find nothing to indicate the court abused its discretion in denying Valencia's motion to suppress the in-field identification.   We note in passing Valencia fails to mention the witness Barbosa picked Valencia out of a photographic album containing 160 pictures and identified him both at the preliminary hearing and at trial.

The judgment as to Guillen and Valencia is affirmed.

FOOTNOTES

1.   This misconception by the trial court was probably engendered by previous opinions on the same subject by this court.

2.   Guillen's appellate counsel somewhat disingenuously points out the jury retired on February 22, 1983, and returned the guilty verdicts on February 23, 1983.   This is true.   The jury received the case at 3:15 p.m. and recessed at 5 p.m. on February 22.   On February 23 at 8:30 a.m., the jury returned;  at 10 a.m., the jury requested testimony be reread regarding the knife used in the robbery;  at 10:45 a.m., the jury returned to the courtroom for a reading of the testimony;  at 10:50 a.m., the jury returned to the jury room for deliberations and at 11 a.m., the jury returned to the courtroom with the guilty verdicts, including a finding on the use of the knife.

3.   Both Rios and Barbosa testified at this hearing.

RICKLES, Associate Justice.

KAUFMAN, Acting P.J., and McDANIEL, J., concur.