Filed 9/13/13 P. v. Bassett CA1/5
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134920
v.
RAYMONT D. BASSETT,                                                  (San Francisco County
                                                                     Super. Ct. No. 21585202)
         Defendant and Appellant.


         The San Francisco District Attorney charged Raymond D. Bassett and an
accomplice with second degree robbery. (Pen. Code, § 211.) Bassett was alleged to have
robbed his victim of an iPhone. Shortly after the crime occurred, the victim identified
Bassett as one of the perpetrators during a “cold show.”1 A jury later found Bassett
guilty of the charge, and after a bifurcated trial, the court found true allegations of a prior
serious felony conviction and a prior strike conviction within the meaning of Penal Code
sections 667, subdivisions (a)(1), (d), and (e), 1170.12, subdivisions (b) and (c). Bassett
was sentenced to eight years in prison and filed a timely notice of appeal.
         In this court, Bassett raises a single issue. He contends the victim’s field
identification of him was the result of an identification procedure so impermissibly
suggestive that it gave rise to a very substantial likelihood of irreparable

1
  The term “cold show” in this context refers to a field identification procedure in which
the victim of crime is taken to view a person detained by police to determine whether or
not the person committed the crime.

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misidentification. He argues the trial court committed reversible error by admitting the
identification. We find this argument unpersuasive and will therefore affirm.
                       FACTUAL AND PROCEDURAL BACKGROUND
       Bassett moved in limine for a ruling on the admissibility of the victim’s field
identification. He contended there was “evidence that the complaining witness was fed a
description of Mr. Bassett prior to the cold show,” which “created an identification
procedure that 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[.]” The trial court held a hearing pursuant to Evidence Code section 402 at
which the victim and several police officers testified.
       The victim, sixteen-year-old D.M., testified he was “mugged at a bus stop” on
May 25, 2011, at approximately 4:45 p.m. D.M. explained he had been mugged by
three men. After he was mugged, he walked to a nearby corner store and called 911. He
was rattled and very nervous when he spoke to the 911 operator and did not think he
could give a description.2 He told the operator there had been a man to his right wearing
a black hoodie and a white T-shirt. D.M. said there was a second man who was “a taller,
bigger guy” with short dreadlocks standing in front of him, and a third man on his left
who actually took D.M.’s iPhone. He recalled the least about the man on his left, but
remembered he was wearing an item of red clothing.
       The man with the dreadlocks stood directly in front of D.M. during the robbery.
He was a black male, and his dreadlocks were short and stopped at the man’s ears.
D.M. did not remember if the man had facial hair. D.M. recalled telling the 911 operator
that the man with dreadlocks wore a hoodie and a beanie.
       Officer Kevin Byrne responded to a dispatch concerning a robbery at the corner of
Van Ness and Clay. He and his partner Officer Coleman made contact with D.M. and
asked him questions about the incident. After a brief interview with D.M., Officers
Byrne and Coleman searched the surrounding area looking for suspects. Officer Steven

2
 D.M. testified that when he was subsequently interviewed by the police, the descriptions
of the men “came back” to him.

                                              2
Needham called on the radio and asked how long ago the incident had occurred. Byrne
spoke to D.M. again, who told him the incident had happened five to ten minutes earlier.
Officer Needham then asked whether one of the men was wearing a white T-shirt under a
black T-shirt. D.M. said the man wore a white T-shirt under a black hoodie.
       Officer Needham testified he stopped at an intersection on the afternoon of
May 25, 2011, when he saw Bassett walking with two other men. Needham watched the
men for five to ten seconds, and then sent a radio transmission to Officer Byrne, one the
officers who was with D.M. Needham had Byrne ask D.M. if one of the men was heavy-
set with dreadlocks, wearing a black T-shirt with a long white T-shirt underneath it.
After a pause, Byrne radioed back and said the descriptions matched.
       At some point, D.M. was asked to identify three individuals. The police took him
to identify the people they had picked up. Before D.M. was taken from the corner store
to identify any suspects, the police had him read and sign a San Francisco Police
Department Cold Show Admonition and Report form. The form stated that he might or
might not see the culprits, that he should not assume that the people he would see were
the ones who committed the crime, and that he did not have to identify anyone. A police
officer read the form to D.M. aloud. He was asked whether he understood what it meant,
and he said he did.
       The officers then drove D.M. to view three people. D.M. did not remember
hearing radio conversations between officers while they drove. He identified two of the
people as the men who robbed him. He testified that his identification of the two people
who robbed him was based on his own personal recollection of the incident.
       After he made the identifications, D.M. was taken to the police station where he
had a further conversation with the police officers. There, he was told the police had
apprehended two of the three men who robbed him, and that a third man, whom D.M. had
been unable to identify, had left.
       When the testimony at the hearing on the motion in limine concluded, the court
heard argument from counsel. Defense counsel pointed out that D.M. could not describe
the robbers when he spoke with 911. She contended that while D.M. was in the police


                                             3
car, Officer Needham called on the radio with a “description that did not comport with
the original description given by [D.M.],” in that it did not mention a white T-shirt. D.M.
was asked whether one of the robbers wore a long white T-shirt and a black T-shirt, and
he answered yes. D.M. then identified Bassett, who was wearing clothes that, counsel
argued, he had heard described over a police radio. Defense counsel asserted that the
cold show identification procedure was suggestive and should be excluded because D.M.
was “fed” the description of the robber by the police before he was asked to identify him.
She argued the procedure was suggestive because “[w]e have one individual with
dreadlocks . . . who is being shown by a police officer after having been described by
another police officer to this young, frightened child, who says he’s never had anything
. . . like this happen to him before.” Counsel concluded by saying that allowing D.M. to
make an in-court identification when he had no recollection of what the defendant looked
like would “make[] a mockery of justice.”
       The prosecutor argued the defense had failed to show there was a substantial
likelihood of misidentification because the police admonished D.M. before the field
identification that he did not have to identify anyone, and that the people he was going to
see might or might not be the perpetrators. The prosecutor disputed the argument that
D.M. had gotten his description of Bassett from overhearing police radio
communications, noting the victim had testified credibly that he did not remember
hearing any such conversations between the officers while they drove around looking for
suspects. Most importantly, D.M. “testified that his identification at that cold show was
based on his own personal recollection of the robbery, not on anything that anybody told
him before the ID.”
       In rebuttal, defense counsel expressed her belief that D.M. was being “absolutely
truthful in all respects.” The problem, in her view, was that D.M. did not recall hearing
the radio transmission which planted the description in his mind and was thus unaware of
its effects on him. In response to the trial court’s comment that she was asking it to “base
a ruling on a state of mind of a declarant he can’t even remember,” counsel countered
that she was asking the court to rule based on the police officers’ testimony that they had


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relayed a description of Bassett to D.M. D.M. had then “internalized these [questions]
into the identification and does not remember them coming from outside.”
       The trial court denied the motion.
                                          DISCUSSION
       Basset contends the suggestive identification violated his rights under the due
process clause of the Fourteenth Amendment. He argues the identification procedures
were unduly suggestive and unnecessary and that D.M.’s identification of him at the cold
show and during trial were not reliable.3 After examining both the record and the
applicable law, we conclude the identification procedure was not unduly suggestive.
I.     Governing Law and Standard of Review
       “It is well established that convictions based on eyewitness identification at trial,
after a pretrial identification, constitute a denial of due process only if the pretrial
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification. [Citations .] A court must review
the ‘totality of the circumstances’ in order to determine whether due process has been
violated. [Citations.] . . . [¶] Where the challenge is to the fairness of the pretrial
identification the burden is upon the defendant to show that it was suggestive or unfair.
[Citations.] If the defendant sustains his burden of showing the pretrial identification was
suggestive, the in-court identification need not necessarily be excluded if the People can
demonstrate that the in-court identification was otherwise reliable. [Citation.]” (People

3
  Bassett also raises a number of arguments regarding the reliability of cross-racial
identification and the allegedly negative correlation between an eyewitness’s level of
confidence in an identification and the accuracy of that identification. No evidence or
argument on these issues was presented at the hearing on Bassett’s motion in limine, and
we therefore do not consider them. (See People v. Torres (2010) 188 Cal.App.4th 775,
780 [motion to suppress “must be reviewed on the record as it existed when the court
decided the motion”].) Moreover, Bassett’s opening brief does not cite to anything in the
record showing that he made a timely and specific objection to the identification on these
bases in the trial court. (People v. Huggins (2006) 38 Cal.4th 175, 240, fn. 18, 242-243
& fn. 19 [defendant forfeited objection that identification procedure violated Fifth,
Eighth, and Fourteenth Amendments by raising only Sixth Amendment objection in trial
court].)

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v. Johnson (1989) 210 Cal.App.3d 316, 322-323 (Johnson).) The defendant must show
the unfairness of the confrontation as a demonstrable reality, not simply speculation. (In
re Carlos M. (1990) 220 Cal.App.3d 372, 386 (Carlos M.).)
       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.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) Our review of the
trial court’s factual findings is deferential, particularly when those findings turn on
credibility determinations. (People v. Alexander (2010) 49 Cal.4th 846, 902.) We
determine de novo whether, under the facts found, the pretrial identification procedure
was unduly suggestive. (Ibid.) “‘Only if the challenged identification procedure is
unnecessarily suggestive is it necessary to determine the reliability of the resulting
identification.’ [Citation.]” (Ibid.)
II.    The Cold Show Identification Procedure Was Not Unnecessarily Suggestive.
       In this case, D.M. identified Bassett at a single-person showup. Such a procedure
“is not necessarily unfair and must be assessed in the light of the totality of the
circumstances. [Citation.] One of the justifications for a showup is the need to exclude
from consideration innocent persons so that the police may continue the search for the
suspect while it is reasonably likely he is still in the area. [Citation.]” (Johnson, supra,
210 Cal.App.3d at p. 323; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 [single
person showup not inherently unfair].) “An innocent person who has been apprehended
should not have to wait for the assembly of a lineup and the summoning of counsel while
the real culprit puts more time, and presumably distance, between himself and the focal
point of the offense.” (People v. Cowger (1988) 202 Cal.App.3d 1066, 1072.)


                                              6
Moreover, “the law favors field identification measures when in close proximity in time
and place to the scene of the crime, with the rationale for the rule being stated: ‘The
potential unfairness in such suggestiveness, however, is offset by the likelihood that a
prompt identification within a short time after the commission of the crime will be more
accurate than a belated identification days or weeks later.’” (In re Richard W. (1979) 91
Cal.App.3d 960, 970.)
       Bassett has failed to meet his burden of demonstrating that the circumstances of
the cold show were unduly suggestive. (Carlos M., supra, 220 Cal.App.3d at p. 386.)
His principal argument is that D.M.’s young age made him particularly susceptible to
altering his descriptions of the robbers based on “the suggestions directed at him by the
officers who interviewed him and the other officers whose comments were audible over
the radios.” First, we note there was no evidence presented below that a 16-year-old is
particularly susceptible to the kind of suggestion Bassett claims occurred. Since we must
review the trial court’s ruling based on the record before it at the time of its ruling, and no
such evidence was before the trial court, we have no basis on which to evaluate this
argument. (People v. Torres, supra, 188 Cal.App.4th at p. 780.)
       Second, Bassett’s argument is based in large part on the notion that D.M. heard the
police radio conversations that allegedly suggested a particular description to him. As
discussed above, however, D.M. was asked whether he had heard those transmissions,
and he testified specifically he did not recall hearing them. The trial court appears to
have believed this testimony, and it was its function to resolve any conflicts in the facts
and assess D.M.’s credibility. (In re Richard W., supra, 91 Cal.App.3d at p. 971.) Thus,
Bassett’s contention “is both purely speculative and contrary to the record,” and such
speculation will not support a claim that the identification procedure was unduly
suggestive. (Carlos M., supra, 220 Cal.App.3d at p. 386.)
       Bassett relies on the fact that D.M. initially told the 911 dispatcher that he couldn’t
identify any of the individuals he saw at the bus stop. Although D.M. did make this
statement, it is also true that he told the 911 operator that the man he later identified as
appellant had short dreadlocks. Even though he was shaken in the immediate aftermath


                                               7
of the robbery, D.M. was still able to remember Bassett’s distinctive hairstyle. Moreover,
D.M. testified that at the time he made the 911 call he was “really, really nervous” but
that “as time passed, the descriptions came back to [him]” when he was questioned by the
police. While Bassett focuses heavily on D.M.’s initial failure to mention that the person
who stood in front of him was wearing a white T-shirt, the omission of this descriptor
does not alone demonstrate that the identification procedure was unduly suggestive. (Cf.
Carlos M., supra, 220 Cal.App.3d at p. 387 [victim’s description of attacker was accurate
despite being wrong as to type of pants he was wearing].)
       It is also significant that D.M. was admonished that merely because the individuals
he was shown were detained by the police, that did not mean they had committed a crime.
D.M. understood he did not have to make any identification at all. And in fact, although
D.M. recalled that one of the robbers wore a red item of clothing, he did not identify the
third suspect, who was also detained, handcuffed, and wearing a red shirt. These facts
are similar to those of Carlos M., supra, 220 Cal.App.3d 372, where during a field
identification, the victim of the crime was shown two suspects together. (Id. at p. 386.)
She had earlier positively identified one of two suspects but did not identify the other.
(Ibid.) The court held this showed the victim’s ability to distinguish between people she
recognized and those she did not. (Ibid.) Likewise, D.M.’s failure to identify the third
suspect indicates he was not influenced by the circumstances of the cold show procedure.
(See ibid. [fact that victim was shown a recognized attacker with a companion did not
cause her to assume companion was also involved in crime].)
       Bassett also complains that after the cold show identifications took place, D.M.
was taken to the police station and interviewed again, at which time he “was told that the
officers had arrested two of the men who robbed him.” Of course, this could not have
influenced D.M.’s field identifications, since they occurred before any conversation at the
police station. (See Johnson, supra, 210 Cal.App.3d at p. 323 [officer’s statement that
defendant was an escapee could not have prompted pretrial identification because
identification occurred a half hour prior to statement].) Furthermore, Bassett’s contention
that D.M.’s in-court identification was tainted because the officers had confirmed the


                                             8
correctness of the field identification is unsupported by any citation to the record of the
Evidence Code section 402 hearing. Bassett points to nothing in the record suggesting
that the police specifically told D.M. that Bassett was one of the men they had arrested.
D.M. himself testified only that the police officers told him “they had gotten two of the
guys[.]”
       In sum, Bassett has not shown that “the pretrial identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” (Johnson, supra, 210 Cal.App.3d at p. 322.) Substantial evidence
supports the trial court’s denial of Bassett’s motion in limine. 4 (Id. at p. 323.)
                                         DISPOSITION
       The judgment is affirmed.
                                                           _________________________
                                                           Jones, P.J.




We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.




4
  Because “‘we find that [the] challenged procedure is not impermissibly suggestive, our
inquiry into the due process claim ends.’ [Citation.]” (People v. Ochoa, supra, 19
Cal.4th at p. 412.) We therefore do not reach Bassett’s claim that D.M.’s identification
was not reliable. As stated earlier, Bassett forfeited a number of the reliability arguments
he makes here by failing to raise them below. (See ante, p. 5, fn. 3.)

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