Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA035300, Lisa M. Chung, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristopher Jorstad and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Dion Isaac Herring, appeals from the judgment entered following his conviction, by jury trial, for kidnapping during the commission of a carjacking (2 counts), robbery, criminal threats and possession of a firearm by a felon, with firearm use findings (Pen. Code, §§ 209.5, 211, 422, 12021, 12022.5, 12022.53). Sentenced to state prison for life plus 35 years, Herring claims there was trial error.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. Prosecution evidence.
On May 2, 2006, Anabertha Fernandez went to Trader Joe’s in her 2003 GMC Yukon S.U.V. Her one-year-old daughter was in the back seat. As Fernandez parked, she noticed a small gray car next to her. There were two African-American women in the front and two African-American men in the back. The two men got out of the gray car and got into Fernandez’s Yukon. One of them, whom Fernandez subsequently identified as defendant Herring, got into the back seat next to her daughter. The other, whom she subsequently identified as codefendant Gerald Pollard, got into the front passenger seat.
Herring had something wrapped up in a jacket. He said, “Hey, hey, do you know what this is? Do you know what this is?” Fernandez thought he was trying to sell her something and she said, “No. No.” Then Herring said it was a gun, showed it to her and said, “If you try to do something, we’re going to kill your daughter and then we’re going to kill you.” Pollard had a metal tube with which he threatened Fernandez. Herring told Fernandez to drive around the parking lot. Then the men told her to drive to a church, where they had her park under a tree to wait for the two women in the gray car. When the women did not arrive, Herring “got angry and started cursing.” Herring ordered Fernandez to drive back to Trader Joe’s. When they spotted the gray car, Herring yelled at the women and told them to follow the Yukon.
The men then had Fernandez drive to an apartment complex. The gray car pulled up alongside the Yukon in the parking lot and the men began handing the women Fernandez’s belongings, including her purse, money, glasses, cell phone, credit cards, driver’s license and a DVD player. Herring told Fernandez they wanted her driver’s license because “[i]f the police gets us, we’re going to kill you and your children.” Fernandez testified that, throughout the carjacking, Herring kept his gun pointed at her child. After unloading Fernandez’s belongings, the men had her drive back to the church parking lot. When they arrived, Herring told her: “I’m going to give you one minute just to get your daughter. That’s it.” Fernandez retrieved her child and got out of the Yukon. Herring, who had meanwhile gotten into the driver’s seat, then drove Fernandez’s S.U.V. away.
On the day after the carjacking, San Bernardino Police Officer Chris Emon attempted to make a routine traffic stop on an S.U.V. When the S.U.V. sped off, Emon gave chase and the S.U.V. ended up crashing. Pollard, the sole occupant, was arrested. This S.U.V. turned out to be Fernandez’s GMC Yukon.
The same day, Detective Kevin Schlecht showed a six-pack photo array to Fernandez. Although the six-pack included a photograph of Pollard, Fernandez did not identify him. However, because Pollard’s photograph was eight years’ old and “his physical appearance had changed,” Schlecht obtained the booking photo taken after Pollard crashed Fernandez’s S.U.V. and put together a new six-pack. This time, Fernandez identified Pollard as the carjacker who sat in the front passenger seat.
Fernandez got her vehicle back the next day. Inside, she found many things that didn’t belong to her, including clothing, hats, masks, seven cell phones, CD’s, jewelry and the jacket the carjacker in the back seat had used to wrap the gun. Fernandez turned all these over to the detectives, as well as some other things she found: three letters addressed to Herring and a set of military-style dog tags. The dog tags were marked “Herring, D.D.” and contained a social security number belonging to Herring’s father, who had died in 2005. Based on this evidence pointing to the identity of the second carjacker, Detective Schlecht put together two six-pack photo arrays that included Herring’s photographs. Herring’s photographs had been taken by the San Bernardino Police Department a week after the carjacking. When she was shown these six-packs, Fernandez identified Herring as having been the carjacker with the gun who sat in the back seat.
One photo array showed front-face views and one showed profiles.
A written description of Herring, prepared by the police the same day the photographs were taken, described him as follows: “Average build, medium complexion, short hair, a full beard, decayed or stained teeth, 5 feet 7 inches tall, 150 pounds, black hair with the tattoos of ‘PJ’, ‘Jasmine’ and ‘Tawny’ on his right shoulder.” Herring was 23 years’ old on the day of the carjacking.
2. Defense evidence.
Deputy Pam Nelson responded to Fernandez’s 911 call on the day of the carjacking. Fernandez described the suspect in the back seat as about 5 feet 9 inches tall and about 200 pounds. Nelson usually obtained this kind of estimate from distraught victims by telling them how tall she, Nelson, was. Fernandez also said the suspect had short, dark hair, was dark complected, clean shaven, and was about 35 to 37 years’ old. She could not recall anything about teeth or tattoos.
Dr. Mitchell Eisen, an eyewitness identification expert, testified about the process of memory retrieval and reconstruction, and how memory can be negatively affected by such phenomena as survival focus, cross-racial identification, multiple assailants and unconscious transference.
CONTENTION
The trial court erred by denying Herring’s request for a pretrial lineup.
DISCUSSION
Trial court did not abuse its discretion by refusing to hold a pretrial lineup.
Herring contends his right to a fair trial was violated when the trial court denied his request to hold a pretrial lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617. This claim is meritless.
1. Legal principles.
Prior to the preliminary hearing, Herring filed a motion for an Evans pretrial lineup. In Evans v. Superior Court, supra, 11 Cal.3d 617, two men robbed James Liddle’s restaurant. Responding police officers apprehended two men who fit Liddle’s description. The men were put into the back of a patrol car and driven to the restaurant where, within 15 minutes of the robbery, Liddle identified them as having the same physical build as the robbers. However, the two men never got out of the patrol car and Liddle “viewed them only through the back window, observing only the backs of their heads and shoulders.” (Id. at p. 620.) At the preliminary hearing, Liddle identified one of the two men, Evans, as having been one of the robbers. Evans thereafter moved for a pretrial lineup, which the trial court denied because it believed it lacked the power to compel the People to conduct a lineup.
Evans held that, in these circumstances, the defendant was entitled to a pretrial lineup: “[P]etitioner seeks to compel the People to exercise a duty to discover material evidence which does not now, in effect, exist. Should petitioner be denied his right of discovery the net effect would be the same as if existing evidence were intentionally suppressed. It is settled that the intentional suppression of material evidence denies a defendant a fair trial. [Citation.] [¶] We conclude in view of the foregoing that due 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. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. [¶] 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 v. Superior Court, supra, 11 Cal.3d at p. 625, fn. omitted, italics added.)
When the trial court denied Herring’s Evans motion, it ruled as follows: “Well, in the court’s mind, it is a very close call because it’s a very serious case – but the issue really is not the severity of the charges but whether or not there is a reasonable likelihood of mistaken identification which a lineup would tend to address. [¶] You have the named victim identifying the defendant; although not, as [defense counsel] pointed out, not a very clear or strong identification. But it does say . . ., ‘That looks like him,’ according to the police report. [¶] But there is corroboration to that identification, which is the paperwork that is found, a variety of different pieces of mail in the defendant’s name, and the court took note of the fact that the address, the city of the mail is San Bernardino, which is the location where this vehicle was stopped and recovered by San Bernardino Police with Mr. Pollard being the driver. [¶] The Court feels that there is, taken [sic] the totality of the evidence, is sufficient corroboration. [¶] The lineup motion is going to be denied.”
2. Discussion.
Herring acknowledges he was not entitled to an Evans lineup unless he demonstrated there was a reasonable likelihood Fernandez had mistakenly identified him. However, he argues such a misidentification was likely because (1) Fernandez probably “never got a clear look at the person sitting behind her” as she only saw him through the rear view mirror at a time when “she was very frightened and stressed, and the identification was cross-racial,” and (2) Fernandez’s “extremely generic description . . . was wrong in most particulars.” Herring also complains the trial court’s “reason for denying the [Evans] motion was nothing more than the existence of corroborating evidence.” We are not persuaded.
Although Fernandez was undoubtedly traumatized by the carjacking, particularly because of the danger it posed to her year-old child, the Attorney General aptly points out “that the assailant in the back seat was the one who issued the orders to the victim who was trying to follow his commands for the safety of her infant daughter and herself. As such, this was not a situation wherein a driver, in a non-confrontational situation was being asked to identify one of several hitchhikers who had been seated in the back seat of her car. It was a situation that dictated she pay attention to the assailant in the back seat, who, the facts . . . showed, spoke to her frequently in order to issue his orders . . . .” Most significantly, the carjacker in the back seat had threatened to kill Fernandez’s child, he was holding the gun, and he was sitting right next to the child. Moreover, there was no evidence Herring ordered Fernandez not to look at him, a warning often given in this situation which might have dissuaded her from scrutinizing him through the rear view mirror.
The physical description Fernandez gave to Officer Nelson was not wrong in every detail. Although she had Herring’s weight off by 50 pounds, the height was fairly close, and the hair length and color were correct. Moreover, it is possible some of the description error might have been caused by the fact Nelson did not speak Spanish, or the fact Fernandez was still upset when they spoke.
Although Fernandez spoke some English, she used a translator at trial.
Nelson testified Fernandez was “totally distraught” when she took her statement, and that it had been very hard to get information because she was so upset.
It is not true the trial court’s only reason for denying a pretrial lineup was the existence of corroborating evidence. The trial court plainly said it was relying on the corroborating evidence and the fact Fernandez had made a positive identification after viewing the photo arrays. Moreover, the trial court only mentioned half of the corroborating evidence, the letters addressed to Herring, and forgot to mention the other half, his father’s dog tags.
But even apart from these problems, Herring’s argument suffers from two fundamental difficulties which are elucidated by People v. Williams (1997) 16 Cal.4th 153, the principal case construing Evans. As Williams explained: “There was, here, no ‘reasonable likelihood of a mistaken identification’ such as was discussed in Evans. [Citation.] In Evans, ‘[i]t was argued in support of the motion [for a lineup] that because [the defendant] was identified at the scene of the robbery by witnesses . . . who saw only a limited view of [the defendant]’s head and shoulders from the rear, the identification was faulty; [and] that because the witnesses had committed themselves as to the identifications [at the preliminary hearing] they would be reluctant to recede from such a position, even if in error, at later proceedings in court . . . .’ [Citation.] Neither argument was – or could have been – made in support of defendant’s motion. The witnesses who identified defendant as a participant in the Cakewalk incident testified to seeing his face. Moreover, as defendant himself emphasizes, their testimony identifying him at trial was the first these witnesses had given respecting the Cakewalk incident.” (People v. Williams, supra, at p. 235, italics added.)
Both of the factors cited by Williams cut against Herring. Fernandez’s identification of Herring, whether related to her experience during the crime itself or her subsequent viewing of the photo arrays, was not fundamentally impaired in the same way as the in-field identification in Evans, where the witness only saw the back of the suspect’s head and shoulders through the rear window of the patrol car. (See People v. Rivera (1981) 127 Cal.App.3d 136, 149, fn. 5 [“Unlike the defendant in Evans . . ., Rivera was positively identified . . . at the [in-field] showup.”]; see also People v. Abdel-Malak (1986) 186 Cal.App.3d 359, 369 [pointing out that “[t]he possibility of a mistaken identification exists in any case” but Evans requires a “ ‘reasonable likelihood of mistaken identification’ ”].) Fernandez had not yet testified at the preliminary hearing when Herring made his lineup motion, and therefore she had not yet committed herself testimonially to an identification. Moreover, there was in this case significant corroborating evidence tying Herring to the carjacked S.U.V., i.e., the letters addressed to him and his father’s dog tags. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 560 [combination of positive identifications (from, e.g., photo arrays and bank security cameras) and corroborating evidence (e.g., piece of robber’s clothing and demand note) defeated Evans motion].)
The trial court did not abuse its discretion by denying Herring’s motion for an Evans pretrial lineup.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.