APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed as modified. (Super. Ct. No. SCD205930).
The opinion of the court was delivered by: McDONALD, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Joaquin Mena of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1),*fn1 counts 1 & 2), and one count of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4), count 3), and found true the special allegations that Mena committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court placed Mena on probation. On appeal, Mena asserts the court abused its discretion by denying his motion for a pretrial lineup, and the terms of his probation are vague and overbroad.
On April 13, 2007, 15-year-old Jesus C. and 17-year-old Jonathan F. were walking home. As they crossed an intersection, two cars (each carrying several men) stopped in the intersection. An occupant from one car got out, asked the boys, "How's the East Side treating you?" and walked toward them. Jesus knew they were in an area claimed by the East Side gang as their territory, and thought the man was an East Side member. Jesus replied "I don't bang," signifying he was not involved in any gangs.
The man responded by swinging his fist at Jesus; the other occupants of the cars got out and approached Jesus. One of the men had a baseball bat and another was holding a knife. Jesus and Jonathan began running and the men chased them. The man carrying the knife, two feet behind Jesus, swung the knife in Jesus's direction, trying to stab him. The man yelled, "stop running or I'm going to shank you." Jesus ran about a block before his pursuers gave up the chase.
A man carrying a bat and another man with a knife chased Jonathan. One man hit Jonathan in the head with the bat, knocking him to the ground; however, he was able to get back up and continue running.
When Jesus realized the men had stopped chasing him, he stopped and looked back. He watched the men return to their cars and drive away.
The Investigation Jonathan went to the hospital. An officer questioned Jesus at the scene to obtain a description of the assailants. Jesus stated they were Hispanic males in their teens to early 20's, some of whom had shaved heads, but did not provide a more detailed description. These descriptions fit numerous persons living in the area.
After the assaults, police patrolled the area, looking for the cars involved in the attack. Police observed a car, roughly matching the description of one of the cars carrying the attackers, parked in front of a house just a few blocks from the site of the attack. Four males with shaved heads or short hair--later identified as Mena and co-defendants Lopez and Pasillas and a Mr. Ferguson--were sitting in the front yard. When officers got out of their car, Pasillas and Ferguson ran inside. Mena and Lopez remained outside, sitting in chairs decorated with East Side gang graffiti. Police searched Mena and found a steak knife in his pocket. They also found a spray paint can and two freshly painted baseball bats in the front yard.
Inside the house, officers found Pasillas hiding under the covers in bed, pretending to be asleep. Pasillas was sweating profusely and his shirt was damp with sweat. He also had lacerations on his face and dried blood on his face, neck and shirt.
The Curbside Lineup A few hours after the attack, police brought Jesus to the house for a curbside lineup. It was still light outside. Jesus remained in the back seat of the police car as police brought each suspect, separately, to stand in front of the police car. There was some discrepancy as to the distance between Jesus and the suspects. One officer stated the suspects stood between 15 to 20 feet from the front of the car, and another officer estimated the distance from Jesus to each suspect was 35 to 40 feet. The officers had each suspect turn to allow Jesus to view the front, sides and backs of each of them. Jesus identified Mena, Lopez, Pasillas and another man found inside the house (Mr. Valle) as being involved in the attack, but stated Ferguson had not been involved.
Approximately one month later, police showed Jonathan four "six pack" photograph arrays, one for each suspect. The only picture Jonathan was able to identify was Mena, but Jonathan stated only that he looked like one ...