Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

MEMORANDUM^** 

Yarkey A. Howard, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We affirm.

We presume the correctness of the underlying state court findings of historical fact. See 28 U.S.C. § 2254(d); Sumner v. Mata, 448 U.S. 539, 547 (1981). The state courts found the following facts. In October 1989, a man entered In Chu's liquor store at about noon, pointed a gun at her and demanded that she empty the cash register. Chu gave the robber $300 cash, and he fled the store. Chu gave chase, pointing at the man and yelling that she had been robbed. She tripped, fell down, and returned to her store, but several bystanders took up the chase. Two of these tackled Howard in a nearby parking lot, and held him until the police arrived and arrested him. Chu gave a description of the robber to the police that was consistent with Howard's appearance. Approximately one hour later, Chu went to the police station, where Howard was being held. The police told her they had apprehended a suspect, and wanted to know if the suspect was the robber. A police officer showed her Howard while he sat alone at a bench. Chu identified Howard as the robber at this show-up, and later at trial.

Howard contends he was denied due process because the pretrial show-up was impermissibly suggestive, and thereby rendered Chu's subsequent in-court identification unreliable. The ultimate question of the constitutionality of pretrial identification procedures is a mixed question of law and fact which this court reviews de novo. See Van Pilon v. Reed, 799 F.2d 1332, 1336 (9th Cir. 1986).

Howard has been denied due process only if Chu's in-court identification at trial was the product of impressions made during the show-up, rather than of observations at the time of the crime, and therefore rendered unreliable. See United States v. Jarrad, 754 F.2d 1451, 1455 (9th Cir.), cert. denied, 474 U.S. 830 (1985). To determine reliability, we consider the totality of the circumstances, including the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated at the confrontation; and, (5) the length of time between the crime and the confrontation. See Neil v. Biggers, 408 U.S. 188, 199-200 (1972).

Although she did not get a good look at his face because she was frightened, Chu viewed the robber in her store when he demanded the contents of her cash register at gunpoint. After the robber fled the store, Chu had further opportunity to view him as she and other bystanders chased him. Prior to the show-up, Chu gave the police a description of the robber's clothing, body-type and skin color that matched Howard. She immediately and unequivocally identified Howard when she saw him at the police station; she identified him because he was the robber, not because he was in custody. In addition, this identification was only one hour after the crime occurred. Finally, she was also certain of her identification of Howard as the robber at trial.

Under the totality of the circumstances, the in-court identification of Howard at trial was reliable. The district court did not err in denying habeas relief.

AFFIRMED.