Filed 4/30/13 P. v. Lahooti CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts a nd parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
FARID LAHOOTI,
Defendant and Appellant. B246509
(Los Angeles County Super. Ct. No. MA056849)

APPEAL from a judgment of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge. Modified and affirmed with directions. Craig C. Kling, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assist ant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and R obert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________2 Defendant Farid Lahooti appeals from the judgment entered following a jury trial in which he was convicted of evading an offi cer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, s ubd. (a)), and three misdemeanor counts of driving with a suspended license ( id. , §§ 14601.1, subd. (a), 14601.5, subd. (a)). 1
Defendant contends the trial court e rred by denying him a he aring during trial on whether the single-photo field identification pr ocedure used by law enforcement officers was unduly suggestive. Alternatively he conte nds the field identification procedure used violated his right to due process because it was unduly suggestive. We conclude the trial court committed no prejudicial error, if it erred at all. Defendant did not seek a hearing until the day after one witness testified rega rding the field identification. Moreover, defendant asked for a “concurrent suppre ssion hearing while” a particular witness
testified. That witness was the third to te stify regarding the field identification. In addition, the field identification was reliabl e, and thus the identification evidence was properly admitted even if the procedure was unduly suggestive. Defendant further contends, and the A ttorney General concedes, Penal Code section 654 precludes sentencing defendant on two of his thre e misdemeanor convictions for driving with a suspended license. We stay the sentences on two of the three
misdemeanors.
BACKGROUND 1. Defendant’s possession of rented Dodge Charger On July 9, 2012, Shabahang Movlaei rent ed a black Dodge Charger from Avis in Newport Beach. 2 Movlaei was married to defendant and they lived in Irvine. Although
defendant did not have a valid driver’s license , he also drove the rented Charger. The car was supposed to be returned to Avis on July 16.

1 Undesignated statutory references are to the Vehicle Code.

2 Date references pertain to 2012.3 Movlaei and defendant argued on July 13, and on July 14 defendant’s brother drove Movlaei to her parents’ home in Wi nnetka, using his father’s car. Movlaei remained at her parents’ house. Defenda nt retained the Charger and its keys. Around 8:44 p.m. on July 15, defendant a rrived at the home of Movlaei’s parents in the Charger and called out for her. Her fa ther went outside and spoke to defendant. From inside the house, Movlaei told defendant not to return and threatened to obtain a restraining order against him. Defendant dr ove away in the Charger. A few miles away, he was caught on camera running a red light in the rented Charger in front of Pierce College. Movlaei identified defendant in the photographs from the red light camera, which included side profile and front images . The timing device used by the red light
camera indicated defendant ran the re d light at 8:44 p.m. on July 15. 2. CHP pursuit of rented Charger About 1:54 a.m. on July 16, a black Dodge Charger drove into the midst of a
coned-off construction zone on the southbound 14 Freeway. California Highway Patrol (CHP) Officer Jason Murawski was parked on Avenue S, monitoring the construction zone from his marked patrol car. He tes tified the Charger drove through the coned-off area for about one-quarter mile before st opping near a pair of highway workers who appeared to speak to the driv er. Murawski turned on his flashing lights and followed the Charger. Highway worker Kevin Lee testified th e Charger approached him, then Lee walked up to it and spoke to the driver from a distance of about five feet. Lee told the driver to stop and asked him where he was goi ng. The driver said he did not know which way to go. Lee directed the driver toward the carpool lane, which was the only lane open
for travel. The driver continued inside the coned-off area. Lee stepped in front of the Charger and again told the driver he could not go that way. The Charger then moved toward the open lane as the CHP car approach ed. Lee testified he interacted with the driver of the Charger for about five minutes and had gotten a good, clear look at him. The driver’s window was completely down a nd the area was well-lit by the headlights of4 Lee’s work vehicle and floodlights all around. Lee noted that the driver was sweating profusely, slurring his words, and seemed to avoid eye contact. Murawski testified the area where construction workers spoke to the dr iver was very dark, but he also testified the construction workers had portable lights set up for their work.
Murawski testified that when he drove up behind the Charger it accelerated. Murawski turned on his siren and used his public address system to direct the driver of the Charger to pull over. The Charger did not comply, but instead drove on within the
coned-off construction zone at about 100 miles per hour. As the Charger moved into the open lane, it struck cones and narrowly misse d a highway worker. The Charger then accelerated to about 130 miles per hour. Muraws ki called for assistance and provided the license plate number for the Charger. During Murawski’s pursuit, the Charger used the shoulder to pass a tractor-trailer, then quickly moved in front of the truck, requiring it to
brake hard. Several other CHP officers joined the pur suit. Each CHP car had its red and blue flashing lights and siren on. Officer David M uniz testified when he entered the freeway the Charger swerved toward his car. The Ch arger did the same thing when another CHP
car from the Newhall offi ce joined the pursuit. The Charger drove onto southbound Interstate 5, then abruptly turned onto the truck bypass lanes of the Interstate 405 inte rchange, where it struck a curb, flattening both tires on the passenger side. The Charge r slowed to about 70 miles per hour on the Interstate 405, then abruptly exited, ran a red light at the bottom of the offramp, then drove back up the onramp. The Charger began to weave, then made a sharp right turn off the onramp and vanished down a wooded embankment. Muniz and his partner left their patrol car, slid down the embankment, and found the Charger against a tree with the driver’s door open and no one inside. CHP officers, joined by Los Angeles Police Department officers, police dogs, and a helicopter, searched the area and set up a containment th at lasted 13 hours, but the driver was not
found.5 Business cards and papers bearing defendant ’s name, the car rental agreement, and a mobile phone were found in the car. Muniz and CHP Sergeant John Williams examined the phone, including photographs therei n. One of those photographs depicted defendant. Movlaei identified the phone at tr ial as the one both she and defendant used. 3. The field identification procedure CHP Officer Raymond Lopez had been i nvolved in the pursuit of the Charger on the 14 Freeway, but had been directed to drop out of the pursuit and return to the construction area. Lopez spoke to Kevin Le e about 3:00 a.m. Lee told Lopez he had
been in contact with the driver for severa l minutes. Lopez asked Lee to describe the driver of the Charger. Lee said the driver wa s a male in his forties with “bluish green” eyes and dark hair, wearing a black T-shirt. Lee also said he thought the driver was
Russian or Ukrainian. 3 When Lee was asked at trial why he thought the driver was Russian or Ukrainian, Lee explained, “I knew he wasn’t like white. I mean, he was light complected. But I knew he wasn’t like—to me he don’t look Mexican. I knew he was some kind of other like nationality.” Upon furt her questioning, he explained, “I mean, it just came to my head at that moment that he looked Russian.” Lee continued, “I don’t know what Russian looking is. But to me he looked Russian at the time.” Lopez related Lee’s description of th e driver to Williams by phone. Williams thought one of the photographs he had seen on the mobile phone found in the Charger— the photograph of defendant—fit the descrip tion given by Lee because the man in the photograph “had blue eyes and dark hair and appeared to be Ukrainian to me.” 4 There was another man in some of the phone photogra phs, but he was not the right age group. Lopez asked Lee if he thought he would be ab le to identify the driver from a photograph.

3 According to defense counsel’s argument, defendant is Persian.

4 Both the mobile phone found in the Char ger and a black and white print of the photograph of defendant found on the phone were admitted in evidence at trial. The trial court allowed the jury to examine the photographs on the phone.6 Lee expressed confidence he could do so. Williams used his own mobile phone to photograph the photograph of de fendant, then sent it to Lopez to show to Lee. Lee testified Lopez did not tell him wh ere they had obtained the photograph. Lopez testified he told Lee “that we weren’t ab le to locate the suspect, that he had left,
fled the scene and that all we were able to find was a cell phone, and there were some pictures on there.” Lopez also said he wa s going to show Lee one of the photographs. Lopez did not use any type of photo identifica tion admonition, but he did not suggest that the photograph depicted the driver. He s howed Lee the photograph Williams had sent and Lee immediately identified defendant as th e driver of the Charger. Lopez asked Lee if he was positive, and Lee said, “Yeah, that’s him. I know that’s him. That’s exactly him.” Lopez communicated Lee’ s identification to Williams.
Lee testified he was certain of his identific ation, both when he made it and at trial.
He also identified defendant at trial. Lopez testified it was Williams’s deci sion to show Lee the photograph and he obeyed Williams’s directive. Williams testif ied he made that decision because none of
the CHP officers had seen the driver and he believed exigent circumstances existed requiring a swift identification of the suspect, if possible. Williams explained that about 20 minutes before the CHP began its pursuit of the Charger, he had heard a broadcast by the Los Angeles County Sheriff’s Department saying “they were responding to a possible armed robbery involving . . . a possible bl ack Charger.” Thus, Williams thought the driver of the Charger the CHP had pursued might have been involved in an armed robbery. In addition, the driver of the Ch arger pursued by the CHP had driven “in an insane manner,” that is, quite dangerously, a nd it appeared he had fled on foot into a residential area. Williams testified prepara tion of an array of photographs would have
taken an unreasonable amount of time. The next day, CHP officers visited th e address on file for defendant with the Department of Motor Vehicles, but “it was a bad address.”7 4. Defendant’s alibi
Defendant’s father and mother testified th at on July 15, defendant’s father picked up defendant in Irvine and brought him to thei r home, which was in either Mission Viejo (according to defendant’s mother) or Irvine ( according to defendant’s father). Defendant slept at their house that night. The next mo rning all three of them went to Woodland
Hills to have breakfast with relatives. 5 Defendant did not have any visible injuries. After breakfast, defendant wanted to get his property out of his wife’s car or tell his wife something, so defendant’s father dr ove defendant to his father-in-law’s house. They left when defendant’s father-i n-law threatened to call the police. 5. Verdict and sentencing The jury convicted defendant of evad ing an officer with willful disregard (§ 2800.2) and three misdemeanor counts of driving with a suspended license (§§ 14601.1, subd. (a), 14601.5, subd. (a)). The court sentenced defendant to three ye ars in prison for evading an officer and imposed concurrent six-month terms for ea ch of the three misdemeanor convictions.
DISCUSSION 1. Suggestive pretrial identification procedure

a. Defendant’s motion and the trial court’s ruling On the first day of testimony at the tr ial, Williams testified he had found the photograph of defendant on the mobile phone in the Charger, sent it to Lopez, and been informed by Lopez that “the Caltrans subcontra ctor” who had spoken to the driver of the Charger had identified the photograph of defendant as depicting the driver. Before testimony resumed the next day, defense counsel told the court he “would like to run a concurrent suppression hearing wh ile Officer Lopez is testifying.” The court
asked if counsel had filed a written motion and given notice. Counsel said he had not.

5 Defendant’s mother initially testified th e family breakfast in Woodland Hills was on the morning of July 15, not July 16, but on cross-examination she testified it was on July 16.8 The prosecutor objected and added, “[T]he defendant had no standing. He claimed it wasn’t him, that he wasn’t driving the vehicle. And he further claimed in court, I believe on the record in front of the judge, that th e phone was not his. [¶] So where is his standing?” The court agreed with the prosecut or. Defense counsel then explained he was not attempting to suppress the phone, but “the identification as it was unduly suggestive.” The court replied, “I don’t know that that’s a subject of a 1538 at this point.” The court added, “And it’s untimely. So that will not be granted. But it certainly goes to the weight, and you can make those arguments.” Th ereafter, first Lee, then Lopez testified
about the field identification.
Defendant contends the trial court erre d by refusing to conduct a hearing on the suggestiveness of the identification procedure. He further argues that even if the trial court did not err, the pretrial identificati on procedure violated his due process rights because it was unduly suggestive.
b. The relevant law and standard of review A defendant may challenge a witness’s identification testimony as tainted by an unduly suggestive pretrial identification by an objection made at the time the evidence is offered, rather than a pretrial motion to suppress under Penal Code section 1538.5. ( People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 401 ( Vanbuskirk ).) To determine whether an extrajudicial iden tification is so unreliable as to violate due process, the court must first determin e whether the identification procedure was unduly suggestive and unnecessary. If it was, the court must determine whether the
identification was nonetheless reliable under the totality of the circumstances. ( People v. Gonzalez (2006) 38 Cal.4th 932, 942 ( Gonzalez ).) A pretrial identification procedure is impermissibly suggestive if it creates a ve ry substantial likelihood of irreparable misidentification, that is, it suggests in adva nce the identity of the person suspected by the police. ( People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Ochoa (1998) 19 Cal.4th 353, 413 ( Ochoa ).) The defendant bears the burden of proving unfairness as a demonstrable reality, not just speculation. ( People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)9 A single-person showup is not inherently unfair. ( Ochoa , supra , 19 Cal.4th at p. 413.) “[S]ingle-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind,
and because the interests of both the accused and law enforcement are best served by an
immediate determination as to whether th e correct person has been apprehended. [Citation.] The law permits the use of in-fi eld identifications arising from single-person show-ups so long as the procedures used were not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” ( In re Carlos M. (1990) 220 Cal.App.3d 372, 387.) Even where the defendant proves th at the identification procedure was impermissibly suggestive, evidence of the iden tification and subsequent identifications is not excluded if the People can prove that th e identification was nonetheless reliable. ( People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on another gr ound in People v.
Edwards (1991) 54 Cal.3d 787, 835.) In determining the reliab ility of an identification following an impermissibly suggestive identifi cation procedure, the court should consider factors such as the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior desc ription of the suspect, the level of certainty demonstrated by the witn ess 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.) On appeal, we review the trial court’s findings of historical fact deferentially, but “we independently review the trial court’s ru ling regarding whether, under those facts, a pretrial identification proce dure was unduly suggestive.” ( Gonzalez , supra , 38 Cal.4th at p. 943.) c. No prejudicial error occurred Defendant was not required to file a written motion to challenge the pretrial identification procedure as unduly suggestive. ( Vanbuskirk , supra , 61 Cal.App.3d at10 p. 401.) However, when the court made its remarks regarding a written motion, notice, and standing, it was under the erroneous impression—induced by defense counsel’s description of the issue as a suppression hearing—that defendant was making a motion under Penal Code section 1538.5 to suppress the products of a search or seizure. That statute does require a written motion accompa nied by proof of service and the motion generally must be made before trial. After defense counsel explained he wanted to “suppress” the identification, not the phone or other seized evidence, the trial court arguably was required to consider
defendant’s motion to exclude the identifi cation testimony and perhaps conduct a hearing outside the presence of the jury. However, th at is not what defendant requested. He
asked the court “to run a concurrent suppression hearing while Officer Lopez is testifying” (italics added). Williams had alre ady testified (without defendant objecting to the admissibility of the identif ication testimony) that he se nt defendant’s photograph to Lopez, who later phoned Williams and said th e Caltrans worker identified the photograph as depicting the driver of the Charger. Ha d the court granted defendant’s request for a “concurrent suppression hearing” while Lopez was testifying, the jury would also have heard at least some of Lopez’s testimony re garding the identification before the court could make a ruling on the motion. Moreover, because Lee testified before Lopez, the jury would also have heard both Lee’s testim ony regarding the field identification and his trial identification of defendant. Thus, ev en if the court erred by failing to hold a “concurrent suppression hearing,” its error was harmless under any standard because the jury would already have heard most of the identification evidence. Had the trial court conducted the “concurrent suppression he aring,” decided to exclude Lopez’s identification testimony, and instructed the jury to disregard all prior identification testimony, it is extremely doubtful the jury woul d have been able to ignore completely its knowledge that Lee had identified defenda nt. Defendant’s motion was therefore untimely when it was made, and any ruling on it during or after Lopez’s testimony also would also have been untimely.11 Even if we were to conclude the tria l court erred by failing to conduct a hearing and that the pretrial identification pr ocedure was unduly suggestive, we would nonetheless conclude that both Lee’s pretrial and trial identification were reliable, and
thus the identification evidence was admissible. Lee testified he interacted with the Charger’s driver for about five minut es, under good lighting conditions. Although Murawski, who was observing the driver’s intera ction with Lee from within his patrol car at an unspecified distance, testified the area was dark, he also testified the construction workers had portable lights set up for their work . There was, at least, sufficient lighting
to enable Lee to observe the driver well e nough to give a detailed description, including the color of his eyes. His description appa rently fit defendant well enough that, without knowledge of whether the photographs on the m obile phone in the Charger depicted the driver or someone else, Williams was able to select a photograph that Lee readily
identified. Defendant has never contende d he did not match the description Lee provided, except with respect to Russian na tionality. Although defense counsel argued at
trial defendant was Persian a nd “doesn’t look Russian,” the critical point was not whether
defendant was Russian or, in some objective sense, looked Russian, but only that Lee thought defendant was Russian or looked Russian. Lee also paid close attention to the driv er of the Charger. He testified, “[M]y attention was all on him ‘cause, I mean, he was in the closure. I had workers to the south of me.” Finally, Lee made his identifi cation of defendant fro m the phone photo about one hour after his interaction with the Charger’s driver, and he was completely certain of its accuracy. Thus, all of the circumstance s indicated Lee’s field identification of defendant from the photo was reliable. In addition, the identification was corr oborated by evidence linking defendant to the rented black Charger the CHP pursued a nd strongly supported an inference he was its driver during the pursuit. The pursued car wa s the one rented by Movlaei from Avis. It was undisputed she did not take the Charger or its keys when she left defendant and moved to her parents’ home in Winnetka. Th e testimony of Movlaei and her father about12 defendant arriving at, and de parting from, their house in the Charger around 8:44 on the night of July 15 was corroborated by the phot ographs from the red light camera near Pierce College, which apparently depicted de fendant running a red li ght at 8:44 p.m. on July 15. Movlaei identified defendant in these photographs a nd defendant neither challenged this identification nor addressed these photographs in argument. Thus, the record established defendant was driving th e Charger in the Winnetka-Pierce College area on the night of July 15 about five hours be fore the very same Charger drove into the construction zone on the 14 Freeway. Noth ing in the record, not even argument, suggested the car was stolen or borrowed fro m defendant before it was driven into the
construction zone and provoked a CHP pursuit. For all of these reasons, the trial court’ s denial of defendant’s request for “a concurrent suppression hearing while Office r Lopez is testifying” did not constitute prejudicial error, if it was error at all.
2. Penal Code section 654 Defendant contends, and the Attorney Gene ral aptly concedes, Penal Code section 654 precludes sentencing defendant on two of his three misdemeanor convictions for driving with a suspended license. There was just one act of driving that violated two statutory sections for three reasons. Pursuant to Penal Code secti on 654, which prohibits punishment for several crimes arising from a single, indivisible course of conduct ( People v. Latimer (1993) 5 Cal.4th 1203, 1208), defe ndant may be punished for only
one of the three convictions. Because the se ntence imposed for each was the same, it is of no consequence which counts are stayed. Accordingly, we modify the judgment to stay counts 3 and 4. The Attorney General argues the trial court should determine which counts should be stayed “[b]ecause count 4 is a priorable offense, while counts 2 and 3 are not.” We disagree. Prior convictions under either section 14601.1 or secti on 14601.5 may increase punishment for a future violation of sections 14601 through 14601.2, and a prior
conviction under section 14601.1 may increase punishment for a future violation of13 14601.5. Moreover, it is the fact of conviction of a viola tion of sections 14601.1 or 14601.5, not whether punishment for that convic tion was served or stayed, that qualifies it as a prior for the purposes of increased puni shment for a future conviction. There is
therefore no need to direct the trial court to determine which counts should be stayed.
DISPOSITION The sentences on counts 3 and 4 are stay ed pursuant to Penal Code section 654
and the trial court is directed to issue an amended abstract of judgment reflecting the stayed terms, unless it has already done so. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.

MILLER, J. *

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

* Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.