 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Leung4/9/1992
R>
At the photo identification, Hiroshi and Moriyuki Nagayama each selected two of the photos they were shown. These two photos depicted David Leung and Michael Chan. Akira Nakamura also identified two photos. The photos he pointed out were of Jeffery Leung and David Leung. None of the witnesses saw a photo of Liu among the photos shown to them by Buck. The witnesses expressed some disagreement over the number of photos shown to them with their estimates ranging from three to five.
3. Identification Procedure Was Fair and Nonsuggestive
While the evidence revealed certain inconsistencies, it was sufficient to support the trial court's Conclusion, based on factual findings supported by substantial evidence, that the procedure was fair and nonsuggestive. Buck, Iwamoto and the witnesses testified that Buck made no suggestive comments and that the witnesses did not observe each others' identifications.
"It is also settled that a photographic identification is sufficiently neutral where the persons in the photographs are similar in age, complexion, physical features and build ..." (People v. Holt (1972) 28 Cal. App. 3d 343, 350 [104 Cal. Rptr. 572].) Since all of the photographs depicted persons with similar physical characteristics, even if only four or five photographs were shown to each witness, there would have been a representative sampling from which a witness could identify the two suspects he had seen. The identification of two suspects by each witness was consistent with the witnesses' observations at the time of the offense. Hence the photographic identification procedure was fair and not suggestive. Evidence of the witnesses' prearrest photographic identification of defendants could therefore be introduced at trial in addition to courtroom identifications of defendants.
C. Sentencing
Each defendant asserts that the trial court erroneously imposed consecutive terms. Defendant Chan also claims that the trial court erroneously denied probation and imposed the middle rather than the mitigated term. Because their arguments differ significantly, we address their contentions separately.
1. Jeffrey Leung
Defendant Jeffrey Leung asserts that the trial court erred in imposing consecutive terms because "it was unaware of its discretion not to impose consecutive sentences ..."
a. Sentencing Proceedings
For a host of proper reasons, the court denied probation. The court then selected the midterm for count I, imposed a one-year consecutive term for the personal use enhancement, stayed the arming enhancement and imposed consecutive one-third the midterm sentences for counts II, III and IV. "I am selecting the consecutive sentences for each of the counts in Counts Two, Three, and Four in view of the fact that there were separate victims, each of whom suffered a separate loss and separate harm." (Italics added.) Sentence on counts V, VI, VII and VIII and the enhancements related thereto were stayed pursuant to Penal Code section 654. The court also imposed two consecutive five-year enhancements pursuant to Penal Code section 667 resulting from Jeffrey's admission of two prior convictions. A total term of 16 years and 8 months in state prison was imposed.
b. Analysis
Jeffrey argues that the court's use of the word "mandates" in sentencing the other defendants indicates that the court was unaware of its discretion to sentence him to concurrent rather than consecutive terms. This contention is meritless. In sentencing Jeffrey Leung, the court not
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|