Filed 7/25/17 P. v. Grizell CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JASON GRIZZELL et al.,

Defendants and Appellants.

F070390

(Super. Ct. No. BF153932A & B)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant Jason Grizzell.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Ynez Maria Chavez.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On September 8, 2014, defendants Jason Grizzell and Ynez Maria Chavez were both convicted after a jury trial of first degree burglary (Pen. Code, § 460, subd. (a); count 1) and two counts of receiving stolen property (§ 496, subd. (a); counts 3 & 4). Grizzell was acquitted of receiving stolen property in count 5; Chavez was convicted of that count. Grizzell was separately charged and convicted of attempted burglary (§§ 664, 460, subd. (a); count 2). Chavez was separately charged with receiving stolen property (§ 496, subd. (a); count 6) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 7). Chavez was acquitted of count 6 and convicted of count 7. In a bifurcated proceeding, Grizzell admitted allegations he had committed two prior offenses that qualified as serious felonies within the meaning of the three strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), two prior serious felony conviction enhancements (§ 667, subd. (a)), and four prior prison term enhancements (§ 667.5, subd. (b)).
The trial court denied Grizzell’s request to strike one of his prior serious felony allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Grizzell was sentenced on October 21, 2014, to two consecutive terms of 25 years to life on counts 1 and 2. He was also sentenced to consecutive determinate terms on counts 3 and 4. The court imposed an additional 24 years based on the prior serious felony conviction enhancements and two prior prison term enhancements. Grizzell petitioned the trial court for resentencing pursuant to Proposition 47. On February 10, 2015, the trial court found counts 3 and 4 to be misdemeanors pursuant to section 1170.18. The court sentenced Grizzell to consecutive sentences of 25 years to life on counts 1 and 2, plus 10 years on each count for two prior serious felony conviction enhancements and two years on each count for two prior prison term enhancements.
On October 21, 2014, the trial court sentenced Chavez to an aggregate term of five years four months in state prison. This sentence included the middle term of four years for the first degree residential burglary conviction on count 1 plus consecutive terms of eight months each for receiving stolen property on count 3 and for possession of methamphetamine on count 7. The court imposed a concurrent midterm of two years on both counts 4 and 5. At a resentencing hearing on December 10, 2014, the trial court granted Chavez’s subsequent petition to reduce her felony convictions on counts 3, 4, 5, and 7 to misdemeanors under section 1170.18. The court reduced these convictions to misdemeanors and resentenced Chavez to a term of one year in the county jail on all four counts, to be served concurrently with the four-year sentence imposed on count 1.
On appeal, Grizzell contends, and the People concede, his admissions of the serious prior felony and prison term enhancements have to be reversed because the trial court failed to advise him of his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl) before taking Grizzell’s admissions of the enhancements. Grizzell contends the trial court improperly admitted evidence of a victim’s pretrial and trial identifications of him because the police identification procedure was unduly suggestive. Both defendants argue the trial court erred in denying Chavez’s motion for a continuance and additional discovery because of belated admission of Global Positioning Satellite (GPS) evidence of Chavez’s location that undermined her third-party culpability defense.
FACTS
McGee Burglary, Count 1
Around 4:00 p.m. on October 20, 2013, Justin McGee and his wife Stacy Walker-McGee returned to their residence in Kern County after shopping. There was a late model, four-door BMW parked on the street in front of their home facing toward the cul-de-sac with the engine running. McGee described the car as silver or gray. Walker-McGee thought the car was blue or black. There was a woman in the driver’s seat of the car. After McGee pulled into his driveway, he exited the car walking to his house with a bag of dog food and groceries. The woman in the BMW turned the car around and started honking the car’s horn. McGee found the front door of his home ajar about two inches.
When McGee pushed the door open and entered his home, he was face-to-face with a man he later identified as Grizzell. Grizzell dropped McGee’s black duffel bag containing stolen property and said, “My bad, Holmes.” McGee put down the dog food and stepped toward Grizzell. Grizzell reached behind himself as though he possessed a weapon. As Grizzell brought his hand around it appeared he was holding a small knife or a screwdriver. McGee stepped back, Grizzell ran past him, and McGee chased defendant.
Walker-McGee exited the car and was in the front yard with their dog. Walker-McGee, who was walking with a cane, screamed when Grizzell ran by. The female driver of the BMW had the car idling in the middle of the street and started driving away slowly as if waiting for Grizzell to catch up. As McGee gave chase, Grizzell ran after the car and got into it. The BMW was gone before McGee got into his car to chase it. Walker-McGee found everything in her bedroom drawers was dumped out. She called 911. McGee found the back sliding glass door had been forced open.
McGee described Grizzell to the police as a White male, between 28 and 35 years old, short brown hair, an unshaven face, and wearing a blue shirt with blue pants. McGee and Walker-McGee described the car used by the burglars as being a charcoal gray, newer model two-door BMW. Walker-McGee described the driver of the BMW to the 911 operator as a Hispanic female with long brown hair, though she told police the driver was Hispanic with her black hair pulled back into a ponytail. She described the male suspect as being in his late 20’s with short brown hair and an unshaven beard, wearing a blue shirt with blue pants. Walker-McGee told the 911 operator the suspect had a tattoo on his face.
A couple of weeks after the burglary, McGee identified Grizzell as the male suspect in a police six-pack photographic lineup. McGee positively identified Grizzell in court, explaining it was a very scary moment when he was face-to-face with McGee in the doorway of his home. McGee could not identify the female driver from a photographic lineup. Walker-McGee identified Chavez as the driver from a photographic lineup, but was unable to identify the male suspect in a photographic lineup because she did not get a good look at his face. McGee and Walker-McGee identified Chavez at trial as being the driver.
Attempted Burglary of Johnny Chavez’s Residence, Count 2
About 5:00 p.m. on September 7, Johnny Chavez and his son were in their residence, each in their own bedroom. Johnny Chavez heard a soft knock on the front door, got up, and opened it. No one was there and he was not expecting anyone. Johnny Chavez returned to his room and laid down on his bed. He heard something pushing on the glass backdoor of his bedroom. At first he thought it was his puppy at the door, but then Johnny Chavez heard the door handle wiggle as though someone was trying to enter. Johnny Chavez slowly pulled back the curtain and saw a man he identified in court as Grizzell.
Grizzell was wearing black sunglasses, a baseball cap he was wearing backwards, and a Pendleton-style shirt. Grizzell was looking down at the door handle while holding a small screwdriver about six inches long. Moments later, Grizzell looked up from the door handle and saw Johnny Chavez watching him. Grizzell took off running toward the front of the house. Johnny Chavez ran through his house and out the front door chasing Grizzell. Once outside, Johnny Chavez saw a small silver car, driven by Grizzell and with a female passenger, back out of his driveway and go down the street. Johnny Chavez could not get the license plate number because there were no plates on the car. He identified photographs of a silver Ford Fusion as being the vehicle driven by Grizzell.
Johnny Chavez gave a description to police of Grizzell as being a White male in his mid-30’s, about six feet tall, 140 to 150 pounds, wearing a black and white Pendleton plaid shirt, black pants, wearing a baseball cap backwards, and possibly wearing gloves. Johnny Chavez looked at a police six-pack photographic lineup and did not definitively identify Grizzell. He did identify subject No. 2, who was Grizzell, as looking like the burglar. Johnny Chavez could not identify Grizzell’s female companion. Johnny Chavez was subpoenaed to testify on April 9, 2014. While he waited for the case to be called, he went inside the courtroom and identified Grizzell, who was sitting with other defendants, as the person who attempted to burglarize his home. Johnny Chavez identified Grizzell at trial.
Kroman Incident, Count 3
At noontime on September 6, Robert Kroman left his residence, at the corner of Laurelglen Boulevard, locked and the security system activated. Danielle Robinson was driving with her children north on South Laurelglen Boulevard during the early afternoon. Robinson was about to make a turn at the corner Kroman lived on when she saw a silver car parked on the opposite side of the street. A light-complected female was standing on the sidewalk next to the car. As Robinson drove past the car, she saw a man she later identified as Grizzell jumping over a brick fence between Kroman’s residence and South Laurelglen. Grizzell had a backpack on his shoulder and carried a silver laptop case. Grizzell was wearing a long-sleeve shirt, a dark baseball hat, glasses, jeans, and tennis shoes.
Robinson made a U-turn and pulled up behind the silver car so she could follow it. As Robinson approached the silver car, she saw Grizzell hand the woman some items, jump over the hood, and get into the driver’s side of the silver car. The woman jumped into the passenger seat and the car drove away very quickly. Robinson called 911 and tried to follow the car but had to slow down because there were children in the area as school had just ended.
Kroman returned home about 4:00 p.m. after his security system was tripped at a bedroom window. When Kroman arrived, police were already present. Kroman found his bedroom and bathroom in complete disarray. His child’s bedroom window was open and her bed had been trampled on. The alarm panel in the living room had been ripped off the wall. Kroman’s loaded, semiautomatic nine-millimeter Sig Sauer pistol was missing from the dresser beside his bed. His wife’s jewelry, makeup items, and a small travel bag were also gone. A video from Kroman’s security camera was played for the jury showing a figure running from the master bedroom toward the alarm panel.
Robinson identified police photographs of the Ford Fusion she saw that day. Robinson was shown a police six-pack photographic lineup about a month after the incident. Robinson indicated the men depicted in photographs 2 and 6 looked similar to the suspect who jumped over the wall, but she was not positive of her identification. Photograph 6 was a picture of Grizzell.
Morley Incident, Count 4
On September 18, Joseph Morley returned home about 11:30 p.m. to find every light in his house had been turned on. Morley left the house earlier that day with all of the lights off. Morley’s wife had arrived home shortly before he did and she called 911. Morley found his entire house had been trashed. Among the items stolen were an electronic game system, a laptop, coin collections, and a Nikon camera.
Scharf Incident, Count 5
Henry Scharf left his home at 5:00 p.m. on September 19, and joined his wife at work. They returned home between 9:00 and 10:00 p.m. They found their bedroom ransacked and property taken. The stolen property included plastic storage containers and storage boxes containing jewelry, a Samsung Galaxy tablet, and an iPad. Police entered the iPad’s serial number into their computer system.
Discovery of Stolen Property
Nicolas Sapien was Chavez’s ex-boyfriend and they have three children together. Although Chavez was dating Grizzell, she lived on and off with Sapien and the children. At 9:40 a.m. on September 26, Detective Joseph Galland contacted Sapien to conduct a parole search of him and to question Chavez. As Galland drove past the residence, he saw Chavez walking back and forth from the garage. She was soon joined by Frederick Grijalva.
After 10 minutes, Galland approached the house and contacted Chavez and Grijalva in the driveway. Some of Chavez’s children were asleep in the house. Galland searched the bedroom of Chavez’s older son, who was sleeping, and found a large amount of jewelry in numerous cardboard boxes stuffed under the bed and inside the closet. Galland discovered a duffel bag in the corner of the bedroom that contained a receipt a few days old for the Vagabond Inn with Grizzell’s name on it. Galland found a Nikon camera containing photographs, but not of Grizzell, Chavez, or Sapien. The camera belonged to Morley. Galland located the iPad stolen from Scharf’s residence in a dresser in the bedroom. In a purse outside the garage, Galland uncovered Kroman’s loaded nine-millimeter pistol. Galland found several bills in Chavez’s name in the residence. Mail addressed to Grizzell and Sapien was also found in the residence.
Hernandez Incident, Count 6
Debbie Hernandez left her residence about 10:30 a.m. on August 22. When she returned at 11:45 a.m., Hernandez discovered her bedroom was all messed up. Jewelry, credit cards, her social security card, her driver’s license, pain medication, coins, and other personal information had been stolen. Hernandez had known Chavez for 13 years. Chavez had been to her home with her ex-boyfriend Sapien, who was Hernandez’s nephew. On another occasion, Hernandez’s stolen coins were found in the backpack of Chavez’s child.
GPS Evidence
To refute Chavez’s third party culpability theory that Monique Chavez, not related to defendant Chavez, was responsible for the McGee burglary, Sergeant David Kessler testified about inmates serving time in the alternative sentencing program, which includes monitoring participants with ankle bracelets tracked by GPS. The inmate ankle monitor provides longitude and latitude coordinates from GPS every three minutes. Through mapping software, the coordinates are converted into locations and addresses. Data for each inmate is stored in the sheriff’s office.
Between August and October, Monique Chavez was participating in the ankle monitoring program. On October 20, she was eight to ten miles from the McGee residence on Lincoln Street. Kessler explained there were times when the electronic monitors did not exactly pinpoint a person’s location because there could be a margin of error, “drift,” of the distance between one side of a residential street to the other. But there was never drift of eight miles in Kessler’s experience.
Other Evidence
Chavez was in possession of methamphetamine when she was arrested at her home on September 26. This was count 7 in the information which was later reduced to a misdemeanor.
Detective Kenneth Sporer learned Chavez had been driving a rented gray, four-door, 2007 BMW, and he obtained copies of the rental agreements. At the rental company, Sporer found the BMW and a Ford Fusion and photographed the cars. Rental car employee Ravi Singh testified Grizzell rented both the Ford Fusion and the BMW. Singh explained Grizzell provided his driver’s license and drove the cars off the lot when they were rented. Singh saw Chavez with Grizzell but she did not rent the cars. Monique Chavez brought the BMW back to the rental company after it had been in an accident, had her name added to the contract, and gave Singh money for damage to the car.
Grizzell and Monique Chavez began switching cars. She rented a Ford Fusion after returning the BMW. Singh explained Monique Chavez rented a Ford Fusion once. Grizzell rented the Ford Fusion on August 23. He brought it back on September 9. Grizzell and Monique Chavez were not renting cars together.
Monique Chavez returned the BMW to the rental agency after it had been in an accident. The BMW had been rented by Grizzell. Monique Chavez rented the Ford Fusion after she returned the BMW and wrecked it as well a few days later. This was after Grizzell had returned the Ford Fusion on September 9.
The parties entered into a series of stipulations. Between August and October 2013, Chavez and Grizzell were dating and they have a child together. Officer Christina Abshire would testify that on October 27, she responded to a traffic collision and found Chavez driving a rented gray 2007 BMW 328i. On April 26, Frederick Grijalva was taken into custody at the Kern County jail and released with an ankle monitor on September 12. He was taken into custody again on October 3, and remained incarcerated through the time of trial. Nicholas Sapien was incarcerated in jail from September 25 until December 3.
Defense
Stacy Walker-McGee told the investigating officers the suspects’ car was a Mercedes, but thought it could be a BMW. Robinson admitted she could not identify anyone in particular from the police photographic lineup. Robinson said she marked photographs 2 and 6 because they looked similar to the person she saw. Grizzell was depicted in photograph 6. Grizzell’s fingerprints did not match any found at Johnny Chavez’s residence. Fingerprints recovered at Kroman’s residence did not match those of Grijalva or Sapien.
To show third party culpability, Chavez introduced GPS data from an electronic monitoring program that placed Monique Chavez within a mile to a mile and a half from Johnny Chavez’s residence for 20 to 30 minutes on September 7. GPS data also indicated that on September 6, Monique Chavez was up and down a cross-street to Laurelglen. There is also a major shopping center in the area.
DISCUSSION
I. Grizzell’s Admissions Of Prior Convictions
A. Introduction
After the jury returned its verdict, the trial court noted defense counsel indicated Grizzell was admitting the serious felony allegations and prior prison term enhancements. Grizzell indicated he wanted to admit the allegations. The trial court proceeded to take Grizzell’s admissions of two prior serious felony convictions alleged both as violations of the three strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and as prior serious felony enhancements (§ 667, subd. (a)). The court also took Grizzell’s admissions of four prior prison term enhancements. In taking Grizzell’s admissions, the court failed to advise him of the consequences of his change of plea. The court further failed to advise, or take waivers of, Grizzell’s constitutional rights pursuant to Boykin/Tahl and In re Yurko (1974) 10 Cal.3d 857. Grizzell contends, and the People concede, he did not make a knowing, intelligent, and voluntary waiver of his constitutional rights when he admitted two prior serious felony convictions and four prior prison term enhancements. We reverse Grizzell’s admissions of these allegations and remand the matter for further proceedings and resentencing.
B. Analysis
A trial court is required to ensure a guilty plea is knowing and voluntary pursuant to Boykin/Tahl. The court must inform the defendant of three constitutional rights as a prophylactic measure—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront accusers. The court must solicit a personal waiver from the defendant of each right. (People v. Cross (2015) 61 Cal.4th 164, 170.)
In Yurko, the California Supreme Court unanimously held the same requirements of advisement and waiver of constitutional rights apply when a defendant admits the truth of a prior conviction allegation subjecting him or her to increased punishment. A record that does not indicate the advisements were made and waivers taken compels the determination the waiver of constitutional rights in the admission of prior convictions was not knowingly and intelligently made. The holdings in Boykin/Tahl require express and specific admonitions as to the constitutional rights being waived by an admission before the trial court can accept a defendant’s admission he or she has prior felony convictions. (People v. Cross, supra, 61 Cal.4th at p. 170, citing In re Yurko, supra, 10 Cal.3d at p. 863.) Further, as a judicially declared rule of criminal procedure, before admitting a prior conviction allegation, the accused must be advised of the precise increase in the prison term to be imposed, the effect of parole eligibility, and the possibility of being adjudged an habitual criminal. (Cross, supra, at pp. 170–171, citing Yurko, supra, at pp. 864–865.)
In People v. Howard (1992) 1 Cal.4th 1132, 1178-1179, the California Supreme Court reaffirmed Yurko’s requirements of explicit admonitions and waivers, but clarified Yurko error is not per se reversible. The test for reversal is whether the record affirmatively shows the change of plea is voluntary and intelligent under the totality of the circumstances. (People v. Howard, supra, at pp. 1175, 1178; People v. Cross, supra, 61 Cal.4th at p. 171.) Our high court’s case law since Yurko has drawn a further distinction between the admission of evidentiary facts that do not admit every element necessary to conviction of an offense from the admission of guilt of a criminal charge or the truth of an enhancing allegation where nothing more is prerequisite to imposition of punishment except conviction of the underlying offense. The requirements of Boykin/Tahl and Yurko apply to the second type of admission, but not to the first. (Cross, supra, at p. 171.)
The trial court failed to give Grizzell any Boykin/Tahl advisements of his constitutional rights, or to take a waiver of those rights pursuant to the requirements of Yurko. The court further failed to inform Grizzell of the penal consequences of his admissions. Here, Grizzell faced a substantially greater sentence as a result of his admissions, including two consecutive three strikes sentences of 25 years to life, multiple enhancements for prior serious felony convictions, and multiple enhancements for prior prison term enhancements. There is nothing in the record to demonstrate Grizzell made a knowing and intelligent waiver of his rights pursuant to Boykin/Tahl and Yurko. Accordingly, all of Grizzell’s admissions of prior serious felony convictions and prior prison term enhancements are invalid.
The People, however, are still entitled to prove the three strikes allegations, prior serious felony enhancements, and prior prison term enhancements. Retrial on these matters is not barred by double jeopardy. (Monge v. California (1998) 524 U.S. 721, 727-734; People v. Barragan (2004) 32 Cal.4th 236, 239-242; People v. Monge (1997) 16 Cal.4th 826, 843-844.) The case is remanded for retrial of the prior serious felony charges made pursuant to the three strikes law, the prior serious felony enhancements, and the prior prison term enhancements, should the People elect to do so. The case is further remanded for resentencing.
II. Identification of Grizzell
Grizzell contends the admission of Johnny Chavez’s pretrial identification of him, as well as his trial identification of Grizzell as the perpetrator of attempted burglary, violated his Sixth Amendment right to counsel at a pretrial lineup. Grizzell argues the trial court erred in not suppressing the pretrial lineup. We do not find error.
A. Johnny Chavez’s Identifications of Grizzell
On October 24, 2013, about seven weeks after the attempted burglary of Johnny Chavez’s residence in September, Detective Sporer prepared and showed Johnny Chavez a six-pack photographic identification lineup. Johnny Chavez was unable to conclusively identify anyone in the lineup, but as he studied it, he pointed to photograph No. 2, a picture of Grizzell, and told Sporer the perpetrator looked similar to No. 2.
Sporer was designated the People’s investigating officer at the preliminary hearing on April 9, 2014. Prior to the beginning of the preliminary hearing, Johnny Chavez was inside the courtroom because he had been subpoenaed as a witness for the hearing. Johnny Chavez identified Grizzell to Sporer prior to the preliminary hearing. Although Johnny Chavez did not positively identify Grizzell from the photographic lineup, he had pointed to Grizzell’s photograph and noted the person in the photograph had similar cheekbones and facial structure. He was not certain of the identification because the subject was not wearing sunglasses. Sporer reported Johnny Chavez did not identify Grizzell as the suspect from Grizzell’s photograph in the lineup.
Sporer explained Johnny Chavez entered the courtroom on his own during a different court session before defendant’s preliminary hearing. There were seven male inmates and one female inmate seated with Grizzell in the courtroom. Johnny Chavez told Sporer it was easier to identify Grizzell when he saw him in person compared to the photographic identification. None of the subjects of the photographic lineup were wearing sunglasses. Sporer did not pay close attention to the other male inmates and was not sure of their racial identities.
Sporer denied asking Johnny Chavez to arrive early to accomplish an in-court identification of Grizzell. Sporer did not ask Johnny Chavez to court and Sporer did not seek to have him make an identification of Grizzell. To Sporer’s knowledge, the prosecutor did not subpoena Johnny Chavez for the purpose of him making an in-court identification of Grizzell.
Grizzell brought a pretrial motion to exclude the pretrial lineup identification conducted without his counsel present. Grizzell argued in his written motion that subsequent in-court identifications by the witness are inadmissible unless there was clear and convincing evidence of proper identification independent of the illegal lineup. At the hearing, defense counsel argued the case was close to trial, the People knew Grizzell was represented by counsel, and the witness made an identification without counsel being present. Defense counsel further complained there was no way to recreate the lineup. Because defense counsel was not present during a crucial stage in the criminal proceedings, he could not represent his client’s interests.
The prosecutor replied it was disingenuous to call what happened in court a lineup, which is something prepared by law enforcement for the purpose of making an identification. Johnny Chavez was subpoenaed to attend the preliminary hearing as a potential witness although prosecutors usually do not call civilian witnesses to testify at preliminary hearings. The prosecutor did not believe Johnny Chavez talked to anyone from the district attorney’s office before or after arriving for the preliminary hearing. Detective Sporer saw Johnny Chavez standing in the hallway with numerous other civilians and law enforcement officers. Sporer, however, did not speak to him.
Johnny Chavez went into the courtroom, saw Grizzell, and recognized him as the person who attempted to break into his house. Johnny Chavez then found Sporer outside the courtroom and reported he saw the person who attempted to break into his house in the courtroom. Johnny Chavez pointed out Grizzell to Sporer. The prosecutor argued there was no lineup, and if Chavez had seen Grizzell in another public place such as the supermarket there would be no illegal lineup. There was no attempt by law enforcement or the People to deprive Grizzell of his right to counsel. The prosecutor argued Johnny Chavez was not with any officer when he entered the courtroom and identified Grizzell.
The trial court denied Grizzell’s motion to suppress the identification, finding it was not an in-court identification or a lineup conducted at the direction or request of law enforcement. The court further found there was no suggestive-type activity by law enforcement officers and the identification was not done at their direction.
At trial, Johnny Chavez testified he was subpoenaed by the prosecution as a witness for the preliminary hearing and went to the courtroom on the date of the hearing. When he arrived, Sporer told him the prosecutor may or may not call him as a witness. Although Johnny Chavez was not called as a witness, he entered the courtroom. When he did so, Johnny Chavez immediately recognized Grizzell as the person attempting to enter his home. Grizzell was wearing a gray jumpsuit. There were other inmates in the courtroom. Johnny Chavez identified Grizzell at trial as the person who attempted to enter his home. Johnny Chavez stated there were “other white guys” seated with Grizzell, whom he described as White.
Johnny Chavez explained Sporer never asked him to enter the courtroom or to identify Grizzell. When Sporer left the courtroom, Johnny Chavez followed him, told him he recognized Grizzell, and pointed Grizzell out to Sporer. Johnny Chavez identified Grizzell before Sporer testified at the preliminary hearing.
Sporer did not initially see Johnny Chavez in the courtroom but saw him later in the hallway, where he first learned Johnny Chavez had been in the courtroom and recognized Grizzell. Johnny Chavez pointed out Grizzell to Sporer from a vestibule with a view into the courtroom. Grizzell was sitting in the jury box wearing inmate clothing with other inmates dressed the same way. There were four other male inmates in the jury box with Grizzell.
B. Analysis
A criminal defendant has a right to have counsel present during a live lineup held after criminal proceedings have commenced under the Sixth Amendment of the United States Constitution. (United States v. Wade (1967) 388 U.S. 218, 236-237 (Wade); People v. Yokely (2010) 183 Cal.App.4th 1264, 1271-1272.) Evidence of a live lineup that violates a defendant’s Sixth Amendment rights may be subject to per se exclusion. (Wade, supra, at pp. 236-237; Gilbert v. California (1967) 388 U.S. 263, 272-273 (Gilbert).) Nevertheless, a witness who participates in an illegal lineup may still identify the defendant at trial, if the prosecution establishes by clear and convincing evidence the in-court identification had an origin independent of the illegal lineup. (Wade, supra, at p. 241; Yokely, supra, at p. 1272; see People v. Ratliff (1986) 41 Cal.3d 675, 689.)
This principle was extended to the identification of the defendant by the victim during a preliminary hearing. (Moore v. Illinois (1977) 434 U.S. 220, 222-223 (Moore).) After the defendant was arrested, there was a court hearing conducted prior to the appointment of counsel. The victim was brought to the hearing, told the defendant’s name, and further told she was going to view the suspect and to identify him if she could. The victim identified the defendant in court and later testified against him at trial where she also identified him as her assailant. (Ibid.) In Moore, the United States Supreme Court applied the rule of Wade and Gilbert, finding the identification tainted and in violation of the Sixth Amendment right to counsel. Moore also held the prosecution could not show the identification came from an independent source. (Moore, supra, at pp. 230–232.)
Identification infected by improper police influence is not automatically excluded. The trial court must screen the evidence before trial for reliability. If there is a very substantial likelihood of irreparable misidentification, the court must disallow the presentation of the evidence at trial. Where the indicia or reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted and the jury ultimately determines its value. (Perry v. New Hampshire (2012) 565 U.S. 228, 232 (Perry), citing Simmons v. United States (1968) 390 U.S. 377, 384.)
While a defendant may attack any lineup, photographic or live, as unduly suggestive, the taint of an unlawful confrontation or lineup may be dispelled if the People show by clear and convincing evidence the identification of the defendant had an independent origin. The trial court’s ruling denying a defendant’s motion to exclude a witness’s identification can include an implied finding the identification had an independent origin. (People v. Ratliff, supra, 41 Cal.3d at p. 689.)
Furthermore, the admission of an in-court identification is considered fair when the defendant is given the opportunity to cross-examine the pertinent witnesses in order to expose the potential error in the lineup method. This is especially so when it appears the in-court identification is based on the personal observation of the defendant at the time of the alleged crime, rather than the previous lineup. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1162–1163.)
In Perry, a husband and wife witnessed the defendant attempting to break into cars outside their apartment building. As husband called the police, wife Nubia Blandon contacted her neighbor, Alex Clavijo, to tell him the suspect had broken into his car. The first police officer to arrive to the scene heard the defendant drop what sounded like a metal baseball bat. Perry was holding speaker equipment and amplifiers from a car. He told the officer he found them on the ground. Clavijo discovered the speakers and amplifiers came from his car and reported this to the officer. (Perry, supra, 565 U.S. at p. 233.)
While Perry was detained, another officer went with Clavijo to Blandon’s apartment. Blandon described the break-in of Clavijo’s car she had seen from her apartment and described a man who generally fit Perry’s description. When asked for a more specific description of the suspect, Blandon pointed to her kitchen window and said the person she saw breaking into Clavijo’s car was standing in the parking lot next to another officer. A month or so later, Blandon was unable to identify Perry from a photographic array. (Perry, supra, 565 U.S. at p. 234.)
In Perry, the United States Supreme Court explained the court had never mandated a per se exclusionary rule. Where the indicators of an eyewitness’s ability to make an identification are outweighed by the corrupting effect of law enforcement suggestion, the identification should be suppressed; otherwise, the evidence should be submitted to the jury if it is admissible in all other respects. Courts weigh the totality of the circumstances. (Perry, supra, 565 U.S. at p. 239.) Among the factors to be considered in evaluating a witness’s ability to make an accurate identification are the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (Ibid., fn. 5.)
The court in Perry explained the purpose behind cases like Wade and its progeny was to ensure accurate identification of suspects “without the taint of improper state conduct.” (Perry, supra, 565 U.S. at p. 245.) The court rejected Perry’s argument that due process be expanded in the realm of eyewitness identifications to include a private citizen’s identification of a suspect without improper state action. The court reasoned the jury, not the judge, traditionally determines the reliability of evidence. (Ibid.) Among the safeguards built into our adversary system are instructions cautioning jurors not to place undue weight on eyewitness identification where it is of questionable reliability, the assistance of counsel who can expose flaws in an eyewitness’s testimony, and eyewitness-specific jury instructions urging caution in appraising eyewitness identification. (Id. at pp. 245-246.)
Many of the safeguards noted by the court were present in Perry’s trial, and the eyewitness was carefully cross-examined on obstructions in her view of the parking lot and how well she saw the defendant. (Perry, supra, 565 U.S. at pp. 247-248.) Perry concluded the due process clause does not require a preliminary judicial inquiry into the reliability of eyewitness identification when it was not procured under unnecessarily suggestive circumstances arranged by law enforcement. (Id. at p. 248; People v. Thomas (2012) 54 Cal.4th 908, 931.)
Johnny Chavez’s in-court identification of Grizzell was not the result of state action, nor was it as suggestive as the identification in Moore. The defendant in Moore was brought into court, called by name with the charges against him, and police investigators actively encouraged the victim to identify the defendant as the suspect if she recognized him. The identification of the suspect in Moore was arranged by law enforcement under highly suggestive circumstances. The identification of Grizzell bore little similarity with Moore. Here, law enforcement investigators did not encourage or even seek an identification of Grizzell by Johnny Chavez. There is nothing else in the record to suggest the investigator encouraged Johnny Chavez to identify Grizzell. (People v. Nguyen (1994) 23 Cal.App.4th 32, 39.) It was Johnny Chavez who approached Detective Sporer prior to the preliminary hearing to inform Sporer he could positively identify Grizzell.
Grizzell argues state action was initiated by the prosecutor issuing a subpoena to Johnny Chavez. We reject this contention because the issuance of a subpoena, without further government direction of the identification, is not enough by itself to implicate state action. Grizzell further argues that when Sporer took Johnny Chavez to a vestibule to point out Grizzell, state action is implicated because Sporer was directing the identification. Grizzell further argues Sporer had Johnny Chavez identify him through the vestibule windows. Sporer did not indicate Grizzell was in the courtroom or suggest who he was. Johnny Chavez had already positively identified Grizzell without any intervention or direction by Sporer or any other law enforcement officer. As defined by the Supreme Court in Perry, there was no initiation of Grizzell’s identification by law enforcement and therefore no state action.
Grizzell further contends he was denied the right to counsel during the identification. He argues the trial court excluded witnesses immediately prior to the preliminary hearing, and Sporer failed to inform defense counsel Grizzell had been identified earlier by Johnny Chavez. Grizzell contends he and his counsel were denied the ability to reconstruct how the identification occurred for the trial court’s benefit. The trial court, however, conducted a pretrial hearing to determine whether the absence of defense counsel tainted the identification as unduly suggestive and required evidence from an independent source. The trial court found Johnny Chavez’s identification of Grizzell was not unduly suggestive, a finding supported by the circumstances surrounding the identification. Johnny Chavez walked into a crowded courtroom filled with between four and seven other male defendants, their counsel, witnesses, law enforcement officers, and court staff. The situation was completely different from the staged in-court identification in Moore. We see no difference in the kind of identification made by the witness here from a chance encounter in a supermarket, airport, school, or other public venue.
Furthermore, we disagree with Grizzell’s assertion his counsel was foreclosed from reconstructing what Johnny Chavez saw when he entered the courtroom the day of the preliminary hearing. Johnny Chavez was subpoenaed to testify, although the record is unclear whether he was still in court when Grizzell’s preliminary hearing was called. Nothing prevented defense counsel from calling Johnny Chavez as a witness, even if the preliminary hearing had to be briefly continued. The cases on the court’s docket that day and the defendants who were in the courtroom were readily available to defense counsel. Defense counsel cross-examined Sporer during the preliminary hearing on the day of the identification about how Johnny Chavez made the in-court identification.
We reject Grizzell’s contention his counsel could not reconstruct the identification or that Johnny Chavez’s later identification of him at trial was subject to per se exclusion under Wade and Gilbert. Pursuant to Simmons v. United States, supra, 390 U.S. 370, the trial court conducted a pretrial hearing to determine the admissibility of the witness identification. After reviewing the record, we find the witness identification of defendant was reliable. Although Johnny Chavez could not definitively identify Grizzell in the photographic lineup, he told Sporer the subject in photograph No. 2 (Grizzell) had the same facial features as the person attempting to break into his home. No challenge was made by Grizzell that the original photographic lineup was unduly suggestive. Johnny Chavez watched the suspect attempting to enter his home through the glass backdoor of his bedroom. It was 5:00 p.m. in September and presumably light outside. When Grizzell looked up and saw Johnny Chavez staring at him, he ran away. Johnny Chavez saw defendant driving a car away from his house.
Finally, in accordance with the high court’s analysis in Perry, supra, 565 U.S. 228 and the California Supreme Court’s similar holding in People v. Rodrigues, supra, 8 Cal.4th 1060, all of the due process protections of representation by counsel, cross-examination of the witness concerning his identification of Grizzell, and instructions advising the jury to view identity evidence with caution were afforded to Grizzell.
III. GPS Evidence
A. Introduction
During pretrial motions, the trial court granted defendant Chavez’s request to introduce evidence of third party culpability linking Monique Chavez to the commission of the McGee burglary alleged in count 1 because she was potentially involved in the rental of the BMW. Detective Sporer testified there was no record of Chavez renting a vehicle.
Outside the jury’s presence, the prosecutor informed the court he intended to call Sergeant Kessler to testify about the local electronic monitoring program and GPS coordinates of Monique Chavez the day of the McGee burglary. The prosecutor gave the relevant GPS records and coordinates to defense counsel. Defense counsel wanted GPS coordinates for Monique Chavez for each burglary and theft-related event because the prosecution’s theme was both defendants rented the cars together.
During defendant’s motion challenging the admissibility of the GPS evidence, the trial court noted that after it ruled third party culpability evidence was admissible, the prosecutor learned Monique Chavez was on electronic monitoring and was not at any of the locations on the dates of the burglaries. Defense counsel had no prior information about Monique Chavez’s status on electronic monitoring and wanted this evidence excluded. The court noted no evidence had yet been presented showing Monique Chavez’s participation in any burglary except defense counsel’s opening statement to the jury. Defense counsel still sought to introduce evidence Monique Chavez’s name was on the car rental agreements and could be identified by an employee of the car rental company.
Chavez’s counsel sought a continuance because he had received 633 pages of GPS coordinates from the People. Defense counsel further sought to exclude the evidence for lack of foundation, counsel’s inability to consult with anyone about the GPS software or to consult with an expert on GPS, and the People’s failure to provide the defense with GPS discovery prior to trial. Defense counsel sought an Evidence Code section 402 hearing to determine if the testifying officer understood how GPS works. Defense counsel sought further discovery of GPS locations for Monique Chavez on October 16, 17, 27 and 28 of 2013.
Defense counsel wanted a continuance of a couple of days to further investigate the GPS evidence, and whether, for instance, Monique Chavez defeated the system. Defense counsel further sought to exclude the evidence on Evidence Code section 352 grounds because it would involve an undue consumption of time. Alternatively, defense counsel moved to have the BMW rental agreement excluded, which he argued would make the Monique Chavez defense and the GPS evidence irrelevant. Chavez would argue lack of identification rather than third party culpability.
The prosecutor argued there was no evidence linking Monique Chavez to the McGee burglary other than her name appearing on the rental agreement for a BMW car. The GPS data included information on Monique Chavez’s location over nine months. The prosecutor explained that although 633 pages of GPS data was provided to defense counsel, only 244 pages of the data were relevant for the time frame in question.
The trial court explored options during the hearing. One option was to allow the car rental employee, Ravi Singh, to testify about the rental agreements and Monique Chavez, then to allow the prosecution to enter the GPS evidence. The court observed defense counsel placed the matter in issue after his motion in limine and with his opening statement to the jury. The other remedy would be to preclude Singh from testifying about the car rental agreements. Although the GPS evidence would not be relevant, defense counsel’s opening statement to the jury had already been made and the prosecutor would be allowed to comment on the statement and the defense’s failure to produce evidence to support counsel’s statement.
The prosecutor was willing to follow the second option and inform Singh not to mention Monique Chavez’s name on the rental agreements during his testimony. Grizzell’s counsel, however, was not willing to expunge Monique Chavez’s name from the rental agreement because that would leave Grizzell as the only person involved in renting and driving the BMW.
The trial court denied Chavez’s requests for an Evidence Code section 402 hearing, a continuance, and discovery of additional GPS documents for specific dates, ruling evidence of Monique Chavez was in play: “Everything comes in.” Defense counsel sought additional GPS records for the 27th and 28th of October. The prosecutor said he would try to make that information available before the end of the day.
During Sergeant Kessler’s testimony, the trial court overruled defense counsel’s objection to his testimony concerning how GPS and the electronic monitoring program worked on the ground the testimony lacked a proper foundation. The trial court also overruled Chavez’s objection to 244 pages of GPS records as being untimely discovered.
Chavez contends the trial court abused its discretion by admitting the GPS evidence without granting a continuance for additional discovery and a hearing pursuant to Evidence Code section 402, violating her right due process, effective assistance of counsel, and a fair trial. We find no error.
B. Motions for Continuance and Evidence Code Section 402 Hearing
Chavez contends the trial court’s failure to grant her a continuance infringed on her right to confrontation because her attorney was denied the ability to impeach crucial prosecution evidence. Chavez claims the defense was blind-sided by the prosecutor’s disclosure during trial of GPS evidence which undermined her third party culpability defense implicating Monique Chavez. Chavez further argues the trial court erred in denying her motion for an evidentiary hearing pursuant to Evidence Code section 402.
Trial courts have broad discretion to determine whether good cause exists to grant a continuance of a trial under section 1050. To show good cause, the defendant must demonstrate counsel and the defendant have prepared for trial with due diligence. In ruling on the motion, the court considers not only benefit to the moving party, but the likelihood the benefit anticipated will result. The court further considers the burden on other witnesses, jurors, the court, and above all, whether substantial justice will be accomplished or defeated by granting the motion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) A trial court’s ruling on a motion for continuance is reviewed for abuse of discretion. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Jenkins, supra, at p. 1037.) The party challenging the trial court’s ruling bears the burden of establishing an abuse of discretion, and orders denying continuances are seldom successfully attacked. (People v. Beames (2007) 40 Cal.4th 907, 920.)
The trial court’s ruling on a continuance motion cannot deprive the defendant or the defendant’s counsel the reasonable opportunity to prepare for trial. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) To effectuate the constitutional rights to counsel and to due process of law, an accused must be informed of the crimes with which he or she is charged in order to have a reasonable opportunity to prepare a defense and to respond to the accusations. (People v. Bishop (1996) 44 Cal.App.4th 220, 231.)
During in limine motions at the beginning of the trial and in opening argument to the jury, Chavez raised a third party culpability defense attempting to implicate Monique Chavez rather than herself. The prosecutor had the right to rebut this defense and evidence associated with it by showing Monique Chavez was nowhere near the location of the McGee burglary alleged in count 1 on the date it occurred. The fact the prosecution did not discover the GPS evidence until after trial commenced did not by itself constitute good cause to delay the trial with a continuance, nor did it deprive Chavez of a defense or the ability to refute the allegations. The GPS evidence was provided by the prosecutor to the defense, and the prosecutor represented to the court the data was provided to the defense as quickly as possible.
The GPS records were provided to the defense before Sergeant Kessler was called as a witness by the People, and the prosecutor limited the tracking data of Monique Chavez it sought to introduce to the time around the McGee burglary. The limited scope of the evidence gave defense counsel time to prepare for cross-examination. Defense counsel did cross-examine Kessler concerning the GPS evidence, testing the foundation of its accuracy.
A trial court has broad discretion in determining the admissibility of evidence. The court is within its discretion whether to decide Evidence Code section 402 questions within the jury’s presence. The trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto. A ruling on a motion under Evidence Code section 402 is not binding on the trial court if the subject evidence is proffered later in the trial. On appeal, a trial court’s decision to admit or not admit evidence is reviewed for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.)
Chavez’s foundational objections to Kessler’s testimony concerning Monique Chavez’s location based on her ankle bracelet and GPS technology was no more than a challenge to witness credibility. It was not an attack on the inherent reliability of the technology. (See People v. Barnes (2013) 216 Cal.App.4th 1508, 1520.) There was no Kelly-Frye motion by Chavez, for instance, challenging the scientific reliability of the GPS records or evidence.
The trial court’s decision to deny Chavez an Evidence Code section 402 hearing to test Sergeant Kessler’s knowledge of how GPS technology works was not an abuse of the trial court’s broad discretion. Defense counsel challenged the foundation of Kessler’s testimony and the reliability of the GPS evidence during cross-examination. Chavez has not demonstrated she was deprived of her Sixth Amendment right to counsel.
C. Harmless Error
Even if the trial court erred in denying Chavez’s motions for a continuance, additional discovery, and an Evidence Code section 402 hearing on GPS evidence, the error is harmless under the standards of review set forth in both People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18. The GPS evidence was relevant only to count 1, the McGee burglary. Had defense counsel discredited the GPS evidence, the only other evidence linking Monique Chavez to count 1 was the fact she returned the BMW to the rental agency. Stacy Walker-McGee identified Chavez as the driver of the BMW Grizzell fled to after the burglary, and she identified Chavez again at trial. Although Justin McGee did not recognized Chavez in a photographic lineup, he identified Chavez as the BMW driver at trial. Per stipulation, Chavez was later involved in a traffic accident while driving the BMW.
Several items of stolen property were found in the house Chavez was residing in. Chavez’s children were asleep in the house. In the bedroom where Chavez’s older son was sleeping, police found a large amount of jewelry in numerous cardboard boxes stuffed under the bed and inside the closet. Police discovered a duffel bag in the corner of the bedroom containing a receipt a few days old for the Vagabond Inn with Grizzell’s name on it. Police found a Nikon camera belonging to Morley. The camera had no photographs of the residents of Chavez’s home. Police found the iPad stolen from the Scharf residence in a dresser in the bedroom. In a purse near the garage, police retrieved Kroman’s loaded nine-millimeter pistol. Several bills in Chavez’s name were found in the residence. Although the stolen property was not found on Chavez’s person, she at least shared dominion and control over it.
We conclude any error in the trial court’s rulings concerning the GPS evidence is harmless beyond a reasonable doubt and would have had no effect on the jury’s verdict.
DISPOSITION
Grizzell’s sentence is reversed. The case is remanded for the People to retry the allegations against Grizzell of prior serious felonies under the three strikes law, serious felony enhancements, and prior prison term enhancements. If the People elect to retry these allegations, they shall notify Grizzell of their intent within 30 days after remand and refile the charges within the time prescribed by law. At the conclusion of further proceedings, or if the People elect not to retry Grizzell on the remaining allegations, the trial court shall resentence Grizzell. Grizzell’s convictions are affirmed.
Chavez’s judgment is affirmed.


PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



MEEHAN, J.