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People v. Leung4/9/1992
818, 602 P.2d 738]; People v. Hawkins (1970) 7 Cal. App. 3d 117, 124-125 [86 Cal. Rptr. 428].)
In evaluating the fairness of a challenged identification procedure, the trial court should look at the totality of the circumstances including any statements by the officer conducting the procedure to the witnesses, the physical setting for the identification, the nature of the subject matter displayed to the witnesses for identification purposes and the amount of time elapsed between the offense and the identification. (Manson v. Brathwaite (1977) 432 U.S. 98, 114 [53 L.Ed.2d 140, 154, 97 S.Ct. 2243]; People v. Sanders (1990) 51 Cal. 3d 471, 508 [273 Cal. Rptr. 537, 797 P.2d 561]; People v. Martinez (1989) 207 Cal. App. 3d 1204, 1219 [255 Cal. Rptr. 691]; People v. Sequeira (1981) 126 Cal. App. 3d 1, 12-13 [179 Cal. Rptr. 249].)
The trial court found that the photos presented to the witnesses for identification were of persons similar in appearance so as to "clearly provide
a good representation from which to select any one individual." Although four of the six photos were of suspects, none of the witnesses observed more than two of the robbers sufficiently during the offense to identify them. Thus the fact that no single witness was able to identify more than two photos lent further credence to the fairness of the identification procedure. The officer conducting the identification procedure told the witnesses nothing other than that the witnesses were to indicate if they recognized any of the people in the photographs. Although all the witnesses were in the same room at the time of the identification, each witness made his identification alone and there was no Discussion with or observation by any witness of another witness's identification.
The trial court therefore determined that the pretrial photographic identification procedure was not suggestive. A trial court's finding that an identification procedure was not suggestive "will be sustained if supported by any substantial evidence, direct or indirect, contradicted or uncontradicted." (People v. Hawkins, supra, 7 Cal. App. 3d at p. 122; accord People v. Guillebeau (1980) 107 Cal. App. 3d 531, 556 [166 Cal. Rptr. 45].) Whether the trial court's factual findings can support a legal Conclusion that the identification procedure was fair is, however, a question of law.
The trial court's factual findings provide ample support for a legal Conclusion that the identification procedure was fair. The officer conducting the procedure made no suggestive comments, the witnesses did not observe each others' identifications, the photographs depicted persons with similar physical characteristics and the witnesses' identifications were consistent with their observations at the time of the offense. Furthermore, the identification took place only 10 days after the offense, when the witnesses' observations of the robbers were still fresh in their minds. On these facts, we must conclude that the photographic identification procedure was fair. Nevertheless, in order to justify our reliance on the trial court's factual findings, we must review the evidence presented at the in limine hearing to verify that the court's findings were supported by substantial evidence.
2. Circumstances of the Photographic Identification
a. Buck's Testimony
Officer Larry Buck testified that he was assigned to investigate the r
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