Filed 6/16/17 P. v. Perez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ABEL PEREZ, JR.,

Defendant and Appellant.


G053064

(Super. Ct. No. 12CF3290)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Abel Perez, Jr., was convicted of attempted murder and other crimes for stabbing Miguel Delgado during a robbery. He contends the photographic lineup from which Delgado identified him was unduly suggestive, but we disagree and affirm the judgment.
FACTS
Shortly after midnight on November 6, 2012, Delgado withdrew cash from an ATM at a 7-Eleven in Santa Ana. As he was leaving the store, a woman identifying herself as Jessica approached him and asked for help jump-starting her Chevy Suburban. Delgado agreed to help her out, but upon driving her to a nearby apartment complex where the Suburban was located, he saw a man lurking in the area and began to have second thoughts. Although Jessica said the man was just one of her neighbors, Delgado sensed danger.
His instincts were correct. While he and Jessica were sitting in his car, the man jumped in, stabbed Delgado in the chest and knee, and demanded his money. Delgado exited the car and began to run away. However, seeing Jessica backing up his car, he stopped and ran back toward her. As he did, he again encountered the man with the knife. The man slashed Delgado’s upraised hands, but he managed to make it back to his car. He then crawled through the passenger window and struggled with Jessica for control of the car. Meanwhile, his assailant returned to the car. With Jessica encouraging him, he reached through the window and stabbed Delgado in the head. Despite all his injuries, Delgado was able to push Jessica out of the car. She ran off with Delgado’s keys and phone, and the man with the knife fled as well. Delgado collapsed at the scene and was taken to the hospital after someone in the area called the police.
It turned out Jessica had left her purse in Delgado’s car. “Jessica” was in fact Devon Cornelius, appellant’s girlfriend at the time of the stabbing. They were both members of a criminal street gang whose primary activities include robbery, assault and weapons violations. During their investigation, the police found appellant’s DNA on the steering wheel of the Suburban Cornelius had used to bait Delgado. In addition, they learned appellant sold Delgado’s phone to his cousin after the attack.
Delgado’s knife wounds required multiple surgeries and a week of hospitalization. On November 7, the day after the attack, the police went to his hospital room and showed him two photographic lineups, one of six women and one of six men. Delgado picked Cornelius’ photograph out of the women’s lineup. However, when shown the men’s lineup, which contained appellant’s photograph, Delgado was unable to identify anyone.
The next day, the police returned to Delgado’s hospital room and showed him another men’s lineup. Like the one he viewed the day before, this lineup contained two rows of three men, and appellant’s photograph was in the number four position. Appellant was the only person included in both lineups. However, his photograph in the second lineup was more recent than the one used in the first lineup. In fact, the photograph used in the second lineup was taken earlier that day, when appellant was booked into jail. Unlike the photograph used in the first lineup, this photograph showed appellant’s prominent neck tattoos. Two other men in the lineup also had visible neck tattoos. Upon looking at the lineup, Delgado identified appellant as the man who stabbed him. He then became emotionally distraught and scared thinking about what appellant had done to him.
At trial, the sole issue was identity. Delgado testified that although the area where the attack occurred was dark, he got a “good look” at the man who stabbed him. The thing he remembered most about the man was that he had cursive tattoos and a scar on his neck. When he was shown the first lineup, he thought the man in the number four position, i.e., appellant, looked like the person who stabbed him, but he did not identify him because his neck tattoos were not visible in that photo. Also, Delgado’s mind was rather foggy at that time because he “was all drugged up on morphine and pills and everything.”
The next day was a different story. When Delgado was shown the lineup containing appellant’s photograph, he felt confident identifying appellant as the person who stabbed him because he could see the tattoos and scar on his neck. In fact, he was sure appellant was his assailant. Delgado also identified appellant in court as the person who stabbed him.
Appellant presented an alibi defense. However, one of his own witnesses, Juan Heredia, who was in the area at the time of the incident, identified him as the man who attacked Delgado. In the end, the jury convicted appellant of attempted murder, aggravated assault, robbery and street terrorism. Gang, weapon and prior conviction allegations were also found true, resulting in a prison sentence of 40 years to life for appellant.
DISCUSSION
Appellant contends the trial court erred in denying his motion to suppress Delgado’s pretrial and trial identifications of him. The claim is based on the fact that not only was appellant the only person whose photograph appeared in both lineups, his photos were placed in the same position each time. Appellant argues these circumstances made the lineups unduly suggestive and rendered Delgado’s identifications unreliable, in violation of his due process rights. We do not see it that way.
Due process requires basic fairness in police lineup procedures, but it does not require absolute neutrality. Due process principles are only implicated when a procedure is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384.) Moreover, even if a particular lineup is found to be unduly suggestive, suppression is not required if the identification it produced was nonetheless reliable under the totality of the circumstances. (People v. Kennedy (2005) 36 Cal.4th 595, 608, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) In making these determinations, we exercise independent review of the proceedings below. (Ibid.) We must also keep in mind the defendant “bears the burden of showing unfairness as a demonstrable reality, not just speculation. [Citation.]” (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
In this case, there is no dispute the 10 men who were included in appellant’s lineups generally resembled appellant in that they all had short dark hair, facial hair and appeared to be Hispanics of roughly the same age and build. Appellant has no qualms about having his photograph included with these particular men. He just does not like the fact his photograph was the only one that was included in both of the lineups.
As our nation’s highest court has recognized, the “improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals.” (Simmons v. United States, supra, 390 U.S. at p. 383.) Naturally, the odds of this occurring “will be increased if the police display to the witness . . . pictures of several persons among which the photograph of a single . . . individual recurs . . . .” (Ibid., fn. omitted.) Thus, where there is only one “repeat player” in multiple lineups the situation is “short of the ideal.” (United States v. Washington (D.C. Cir. 2004) 353 F.3d 42, 45; United States v. Fors (1981 U.S. Ct. Mil. Apps.) 10 M.J. 367, 372.) However, the law is clear that the inclusion of the defendant in multiple lineups does not violate due process in and of itself (People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218), even if the defendant is the only person common to both lineups (People v. DeSantis, supra, 2 Cal.4th at p. 1224), or his photograph occupied the same position in each of the lineups (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1081-1082, disapproved on other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354). If it were otherwise, police would never be able to show a victim a second lineup with the suspect’s photo.
Here, photographs of appellant were included in the same position in both lineups, but the two photographs were markedly different in terms of the key identifying feature that stood out to Delgado, which was appellant’s neck tattoos. At trial, Delgado provided a detailed explanation of how this aspect of the photos – as opposed to simply seeing appellant twice – informed his decision-making process. (See People v. Johnson, supra, 3 Cal.4th at p. 1218 [inclusion of defendant’s photograph in dual lineups was not unduly suggestive where the evidence indicated the witness’s identification of him arose from the fact a more recent photograph was used in the second lineup].) Additionally, because other men in the second lineup also had neck tattoos, we know that characteristic was not the only reason Delgado picked appellant out of the lineup. Suffice it to say, the mere fact a photograph of appellant was included in the same position in both lineups did not make them unduly suggestive.
Moreover, the record shows Delgado’s identifications were reliable under the totality of the circumstances. In this regard, we find it telling that: 1) Delgado got a good look at his assailant during the stabbing; 2) he viewed the lineups within a few days of the attack; 3) the principal reason he did not identify appellant’s photograph during the first lineup is because appellant’s neck scar and tattoos were not visible; 4) once appellant’s photograph was updated in the second lineup he identified him by those distinguishing features; and 5) after doing so, he became visibly frightened thinking back on how appellant had attacked him. These factors convince us that any unfairness created by including appellant’s photograph in both lineups was immaterial. We thus have no occasion to disturb the trial court’s decision to admit Delgado’s identifications into evidence.
DISPOSITION
The judgment is affirmed.


BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.