Unpublished Disposition, 908 F.2d 978 (9th Cir. 1989)

No. 89-10061.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS,^*  Jr., District Judge.

MEMORANDUM^** 

Defendant, James D. Shumaker, appeals his conviction for public lewdness, in violation of 18 U.S.C. § 13/ Cal.Pen.C. Sec. 314. We affirm.

FACTS

On September 12, 1987, Christine Miranda took her daughter to the East Beach of Whiskeytown Lake in the Whiskeytown National Recreational Area. They encountered a nude man performing a lewd act on two occasions, once from approximately 600 feet while out in the water and once from approximately 75 feet near the lake parking lot. Miranda also recognized the driver of a government truck leaving the parking lot as being the same person she had seen on the two previous occasions.

That afternoon, park rangers interviewed the defendant. Defendant was the only government employee in the area at the time. Miranda was given an opportunity to observe the defendant at this time, and identified the defendant as the man she had seen at each incident described above. Defendant was charged with lewd and obscene conduct under California Penal Code Sec. 314 as applied to acts committed in Whiskeytown National Recreation Area through 18 U.S.C. § 13 and trial was held before Magistrate Ross Carter. Magistrate Carter found defendant guilty.

Defendant appealed this decision to the district court pursuant to 18 U.S.C. § 3402. The district court remanded to the Magistrate for findings on the suggestiveness and reliability of the ranger station identification by Miranda. The Magistrate issued findings on January 6, 1989 that the out-of-court identification of the defendant by Miranda was not unconstitutionally suggestive and that there was sufficient indicia of reliability under all the facts and circumstances to render the identification admissible even if the identification was unduly suggestive.

On January 20, 1989, the district court adopted the Magistrate's findings and affirmed the defendant's conviction. Notice of Appeal was timely filed on January 30, 1989.

DISCUSSION

The defendant attacks his conviction on two grounds; 1) that there was insufficient evidence identifying him as the individual guilty of the obscene acts, and 2) that there was insufficient evidence of intent to be guilty of lewd conduct under California caselaw interpreting Cal.Pen.Code Sec. 314.

I. Was There Sufficient Evidence of Identification to Convict Defendant?

Defendant has two arguments concerning the identification of himself as the guilty party. First, defendant argues that the uncorroborated testimony of a single witness is insufficient to support a conviction. Second, defendant argues that the show-up identification was impermissibly suggestive and unreliable, and that, therefore, the identification of himself as the guilty party must be suppressed as evidence.

A. Did the District Court Err in Adopting the Magistrate's Findings which Were Based on the Uncorroborated Testimony of a Single Witness?

A district court's findings of fact, or a magistrate's findings adopted by a district court, are subject to the clearly erroneous standard of review. Fed.R.Civ.Pro.Rule 52(a); United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.), cert. denied, 469 U.S. 824 (1984). Under this standard, the appellate court must accept the trial court's findings unless, after review, the appellate court is left with the definite and firm conviction that a mistake has been made by the district court. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Dollar Rent-A-Car of Washington, Inc. v. Travellers Indemnity Co., 774 F.2d 1371, 1374 (9th Cir. 1985).

When a trial court, or magistrate, has made findings based on testimony of one or two witnesses each of whom have given plausible testimony that is not contradicted by external evidence, that finding can virtually never be "clear error." Anderson v. City of Bessemer City, 470 U.S. 564, 575-76 (1985).

In this case, the Magistrate was faced with two conflicting but possible stories. Based on his observation of the witnesses he chose to believe witness Miranda's version of events. This finding cannot be overturned absent a definite and firm conviction that the trial court has made a mistake. McConney, 728 F.2d at 1201. Therefore, given the support for Magistrate Carter's decision which exists in the evidence, it cannot be overturned.

B. Was the Out-of-court Identification of Defendant Unconstitutionally Suggestive and Unreliable?

Defendant next argues that the show-up procedure by which witness Miranda identified defendant as the man she had seen committing obscene acts was impermissibly suggestive and unreliable. The proper standard of review to determine the constitutionality of a pre-trial identification procedure is de novo. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987); United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986).

The review of decisions to admit evidence of suggestive pretiral identification procedures is a two-step process. Manson v. Brathwaite, 432 U.S. 98 (1977); Bagley, 772 F.2d at 492. First, the court must determine whether the identification procedure was unnecessarily suggestive, based on the totality of the surrounding circumstances. See Bagley, 772 F.2d at 482 (photographic array); Ponce v. Cupp, 735 F.2d 333, 336-37 (9th Cir. 1984) (one-on-one confrontation). Second, if the court determines that a procedure was suggestive, the court must decide if the identification was nonetheless reliable under Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Bagley, 772 F.2d at 492, see also Ponce, 735 F.2d at 333.

Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. Bagley, 772 F.2d at 492. A show-up procedure, while likely to be more suggestive than a line-up procedure, is not necessarily unduly suggestive. Id. United States v. Kessler, 692 F.2d 584, 585 (9th Cir. 1982).

In this case, the show-up procedure was not unduly suggestive. The defendant argues that the witness was given suggestive encouragement by Ranger Collier. However, the witness was given no unduly suggestive verbal encouragement, either oral or written. The witness was told that the man she was going to see was the man she saw driving out of the beach parking lot. As the government indicates, this fact is not at issue. The issue of identification is whether the man Miranda saw driving out of the parking lot was the same man she saw committing obscene conduct, and Miranda identified the two as the same man. The defendant also argues that another procedure could have been used which would have been less suggestive. However, courts have indicated that this is irrelevant to the question of whether a particular procedure itself was unduly suggestive. See, e.g., id. at 585.

Since we find that the show-up procedure used here was not unduly suggestive, it is unnecessary to consider the reliability of the identification. See Bagley, 772 F.2d at 492, see also United States v. Love, 746 F.2d 477, 478-79 (9th Cir. 1984). Therefore, the Magistrate appropriately admitted as evidence the identification of the defendant by the witness.

II. Was There Sufficient Evidence of Intent to Convict Defendant under Cal.Pen.C. Sec. 314?

Last, defendant argues that the incident of which he was accused and convicted did not carry with it the necessary indicia of intent to be a violation of California Penal Code Sec. 314. The standard of review for mixed questions of law and fact is de novo. McConney, 728 F.2d at 1201.

Under California Penal Code Sec. 314, " [e]very person who willfully and lewdly, ... [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor." Cal.Pen.Code Sec. 314(1). California courts have held that this statute requires a showing of intent, but that this showing is satisfied by certain actions. In re Smith, 7 Cal. 3d 363, 366 (1972); In re Bevil, 68 Cal. 2d 854 (1968); People v. Succop, 67 Cal. 2d 785 (1967), cert. denied, 390 U.S. 983 (1968); People v. Sanchez, 239 Cal. App. 2d 51 (1965).

In the present case, the defendant's actions satisfy this requirement. Defendant argues that despite the nature of his actions he is not guilty under this statute because of the isolated nature of the location. However, the statute does not require that the conduct occur in a crowded location. Likewise, California courts have not indicated that the public or private location of exposure incidents bears on their decisions. See, e.g., Smith, 7 Cal. 3d at 366. It is simply the nature of the act.

We, therefore, AFFIRM the district court's conviction of defendant.