Court: Superior County: San Diego Judge: Bernard E. Revak* Ct.App. 4/1 D052091 Super. Ct. No. SCD205930
The opinion of the court was delivered by: Corrigan, J.
When a trial court denies a defendant's motion for a physical lineup and the defendant does not seek writ review of that ruling, is the defendant barred from raising the issue on postjudgment appeal? The Court of Appeal said yes, reasoning that a failure to challenge the ruling by writ undermines the purpose of the lineup right conferred under Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans) and prevents the reviewing court from fashioning relief if it finds error. Although writ review may be the more effective means of protecting a defendant's right to a lineup, we decline to impose a writ requirement as a prerequisite to raising the issue on appeal. The right to appeal after judgment is statutory. We have historically been hesitant to create procedural bars to the exercise of that right.
Alternatively, the Court of Appeal assumed the issue was preserved and that the trial court erred. The Court of Appeal properly concluded that any error was harmless. Accordingly, the judgment is affirmed.
In reaching this conclusion, we clarify the source of the due process right relied on by the Evans court to require a lineup in appropriate cases. The Evans rule is based on state due process. Therefore error is reviewed under People v. Watson (1956) 46 Cal.2d 818 (Watson).
I. Factual and Procedural Background
Around 5:00 p.m. on April 13, 2007, 15-year-old Jesus C. and 17-year-old Jonathan F. were walking to Jonathan's home. As they crossed the street, a red Ford travelling toward them stopped in the intersection. A white car followed a few seconds later and also stopped in the intersection. The occupants of both cars were young Hispanic men with shaved heads or short hair. One of the men got out of the red car, approached the boys and yelled, "How's the East Side life treating you?" Jesus knew he was in an area claimed as "East Side" gang territory and believed the man was asking whether he was in a gang. Both boys answered that they did not "bang," meaning they were not in a gang. The man ran forward and swung his fist at Jesus, who backed up to dodge the blow.
The occupants of both cars got out and the boys ran. Some of the men from the red car chased them. Jesus could not recall how many ran after him, but believed it might have been two. As he ran, Jesus looked back "a couple of times." One man got within two feet and swung a knife at him. The man yelled, "Stop running or I'm going to shank you." Jesus kept running for half a block until he realized he was no longer being chased. He turned and saw the men running back to the cars. One of the men carried a black bat.
Jonathan testified that the men from the red car were within 12 to 14 feet of them when the boys started to run. The boys ran in different directions. Jonathan saw one man chasing Jesus. Three men chased Jonathan. One had a baseball bat and another held a knife. Jonathan was struck in the head with the baseball bat. Taken to the hospital, he received stitches for a wound above his ear.
Around 6:00 p.m., two investigating officers saw a red Ford parked about three blocks from the intersection where the boys had been approached. No evidence was presented at trial linking the car to the assault. The officers saw four Hispanic men, including defendant Joaquin Mena, sitting in the front yard of a nearby house. When the officers approached, two of the men ran inside. Defendant and Jorge Lopez remained in the yard, sitting in chairs bearing East Side gang graffiti. The officers recovered a steak knife from defendant's pocket.
Inside the house, the officers found Adrian Pasillas hiding under the covers of a bed. Pasillas looked like he had been in a fight, with abrasions on his head and dried blood on his face and shirt. The officers found two bats in the side yard next to a can of black spray paint. Both bats had been recently painted.
Officer Martha Gasca met with Jesus and asked whether he would view a curbside showup. Jesus was nervous and somewhat afraid, telling Gasca that his neighbor had been killed recently after testifying in court. Jesus agreed to go with her but, while being driven to the showup, covered his face with the hood of his sweatshirt and lay down in the backseat. They arrived at the location of the showup around 7:00 p.m., when it was still light.
During the showup, Jesus remained in the back of the patrol car. One officer stated the car was parked about 35 feet from the suspects; another officer described the distance as 15 to 20 feet. The showup included defendant, Lopez, and Pasillas, along with Robert Ferguson, the other man who had run into the house, and Ricardo Sanchez, who was also found in the residence. Before the men were presented, Jesus was read an admonition that included an advisement that he was not obligated to identify anyone. Each suspect was then presented individually, and turned so that Jesus could see him from the front, side, and back. Jesus testified at trial that he pulled his hat down and crouched as low as possible behind the front seat of the police car during the showup. He did not tell Officer Gasca that he had any difficulty seeing the suspects, although he testified that the men were "far away." Jesus identified defendant, Lopez, Pasillas, and Sanchez. Referring to defendant Mena, Jesus said, "Yes." As to Lopez, he said, "Yes, he was there too." Jesus specifically identified Pasillas as the man with the knife. Jesus said that Sanchez was the last man to get out of the car. He said that during the incident he did not see Ferguson, who is White.
On May 9, 2007, the police met with Jonathan and showed him four photographic lineups, one for each of the men Jesus had identified. Jonathan identified only defendant's photograph, stating that it "looked like" one of the men in the red car, but he was not sure.
All four of the men identified at the showup were jointly charged. Before the preliminary hearing, co-defendant Lopez sought an order directing the police to conduct a physical lineup for Jesus to attend. Defendant joined in the motion. Lopez argued there was a reasonable likelihood of misidentification based on Jesus's brief opportunity to see his assailants; his failure to provide any details as to "clothing, [t]attoos, jewelry, [or] piercings"; and his initial statement that he might "possibly" identify the men if he saw them again. Lopez argued that the curbside showup, in which Jesus was shown four Hispanic males of similar dress, hairstyles, and facial hair, was suggestive.*fn1 The trial court denied the motion, concluding there was no reasonable likelihood of misidentification that would be resolved by a physical lineup.
At both the preliminary hearing and trial, Jesus was unable to identify defendant or co-defendants Pasillas and Lopez.*fn2 Likewise, Jonathan made no identifications in court. However, at trial Jesus testified that the four men he had identified at the showup were involved in the chase.
Defendant was convicted of two counts of assault with a deadly weapon and of carrying a concealed dirk or dagger.*fn3 The jury also concluded that defendant committed both assaults for the benefit of a criminal street gang.*fn4 Defendant was placed on probation for three years and sentenced to one year in the county jail.
Defendant contended on appeal that the trial court erroneously denied his motion for a pretrial lineup, and that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman.) The Court of Appeal concluded that defendant forfeited his right to appeal the denial of his lineup motion by failing to seek a pretrial writ. It observed: "When a trial court denies a request for a pretrial lineup, and the defendant elects not to challenge the ruling by writ, the delay effectively thwarts the purposes served by the right conferred under Evans and prevents a court reviewing the claim on appeal from the conviction from fashioning any appropriate relief even if it finds error." The Court of Appeal thus held: "Because of the uniquely ephemeral nature of the rights conferred by Evans, we conclude the requirement of timely pursuit of a lineup includes timely review of an adverse ruling by writ proceedings, and failure to pursue writ relief waives the claim of error."
Addressing the issue on the merits, the Court of Appeal held that even assuming defendant had preserved his claim and that the trial court had abused its discretion in failing to order a lineup, the error was harmless beyond a reasonable doubt because Jesus did not identify defendant at either the preliminary hearing or trial.*fn5
II. Discussion A. Defendant's Right to a Lineup
This court established the procedure for seeking a so-called Evans lineup in 1974. In Evans, supra, 11 Cal.3d 617, witnesses had identified the defendant at the crime scene after seeing only the back of his head and shoulders through the rear window of a police car where he was seated. The defendant asked the trial court to order police to conduct a pretrial lineup. The trial court was inclined to do so, but believed it lacked authority to make such an order. The defendant ultimately applied to this court for a writ of mandate.
When Evans was decided, there were no cases holding "as a matter of discovery in criminal matters that a trial court may order the granting of a defendant's request for a pretrial lineup." (Evans, supra, 11 Cal.3d at p. 621.) The Evans court held: "[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate." (Id. at p. 625.) The right to a lineup, however, is neither universal nor categorical. To secure a court-ordered lineup a defendant must show that eyewitness identification is a material issue and there is "a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Ibid.)
The Evans court explained: "The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. [Citations.] We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (Evans, supra, 11 Cal.3d at p. 625.)
B. Writ a Basis to Challenge Ruling Denying a Lineup Motion
Here, the Court of Appeal held that a defendant is barred from challenging the denial of a lineup motion on appeal if the defendant failed to first seek interlocutory writ review of that ruling. We reject that judicially imposed requirement. Instead, we hold that a defendant may, but is not required to, seek writ relief. A failure to do so has tactical consequences but forfeiture of appeal is not one of them.
" 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' " (People v. Mazurette (2001) 24 Cal.4th 789, 792; see People v. Totari (2002) 28 Cal.4th 876, 881.) Section 1237, subdivision (a) confers on the defendant the right to appeal from "a final judgment of conviction." However, section 1259 makes clear that the full scope of appeal encompasses "any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant." (§ 1259.) "[T]he Legislature has provided for appellate review of judgments and postjudgment orders and any intermediate order or decision which involves the merits or necessarily affects that judgment or postjudgment order, or which substantially affects the rights of a party." (In re Matthew C. (1993) 6 Cal.4th 386, 396, fn. omitted.) Under section 1259 "an appellate court may review any question of law involved in any order made prior to judgment." (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 710.) An order denying a lineup motion involves a question of law made before the judgment and it affects a substantial right of the defendant. Therefore, it falls within the scope of section 1259. If allowed to stand, the Court of Appeal's requirement could impose a significant limitation on that right.
This court reviewed the denial of lineup motions on postjudgment appeal in People v. Abel (2012) 53 Cal.4th 891, 911-913, and People v. Redd (2010) 48 Cal.4th 691, 723-725, in which the lineups were requested shortly before trial, and People v. Farnam (2002) 28 Cal.4th 107, 183-184, and People v. Williams (1997) 16 Cal.4th 153, 235-236, in which lineups were sought during the penalty phase of trial. In each case we concluded that the trial court did not abuse its discretion by denying the lineup motion. However, none of these cases raised the question of whether a failure to seek writ relief bars review on appeal.
A reviewing court may exercise its jurisdiction in either a direct appeal or an extraordinary writ proceeding. (Leone v. Medical Board (2000) 22 Cal.4th 660, 668.) A writ of mandate, or mandamus, is an extraordinary writ known at common law. The writ of mandate lies generally to compel performance of a legal duty when no plain, speedy, and adequate remedy at law is available. (Code Civ. Proc., §§ 1085-1086.) Review by mandate "is often sought before trial to avoid the effect of a trial court's order or other ruling that will affect the conduct of the proceedings and that could not otherwise be challenged until after judgment is rendered." (1 Bonneau et al., Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed. 2011) § 7.8, p. 354.) Unlike the appeal following judgment, which is heard as a matter of statutory right, review by writ is at the discretion of the reviewing court. "The discretionary aspect of ...