Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA272668, Stephen Marcus, Judge.
John A. Colucci, 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, Senior Assistant Attorney General, Margaret E. Maxwell, Joseph P. Lee and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Miguel Cruz was convicted, following a jury trial, of one count of attempted, premeditated murder in violation of Penal Code sections 187 and 664, and one count of assault with a firearm in violation of section 245, subdivision (a). The jury found true the allegation that appellant personally discharged a firearm in the commission of the attempted murder within the meaning of section 12022.53, subdivisions (b) through (d). The jury also found true the allegations that in the commission of both offenses, appellant personally inflicted great bodily harm within the meaning of section 12022.7, subdivision (a) and personally used a firearm within the meaning of section 12022.5. The trial court found true the allegations that appellant had suffered a prior serious felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law) and 667, subdivision (a), and served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced appellant to a total term of 44 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting evidence to explain the investigating officer's actions in preparing a photographic lineup and failing to declare a mistrial when evidence of appellant's criminal history was elicited. Appellant further contends that the prosecutor committed misconduct during closing argument and that the trial court erred in failing to suppress tainted identifications. Respondent requests that we modify the abstract of judgment to impose a $20 security fee. As set forth in our disposition, we so order. We affirm the judgment of conviction in all other respects.
Facts
On May 8, 2004, about midnight, Manuel Quevedo was working as a security guard at the La Hacienda Real nightclub in Los Angeles County. Quevedo and other guards went to the men's restroom in response to complaints of a disturbance. There, they found a man who had been causing trouble earlier in the evening. The man was engaged in an argument. Quevedo told him to take it easy and relax. The man pushed Quevedo and a fight ensued. Quevedo and the other guard walked the man outside the club, into the back parking lot. Appellant and two or three other men left with the ejected man. As the men left, appellant told to Quevedo and the other guards, "We're going to come back. We're going to come after you guys."
A short time later, Quevedo and the other guards went to the front of the club. There Quevedo saw appellant and his friends trying to get back into the club. Quevedo told them to leave. Appellant challenged Quevedo to fight him. Quevedo moved toward appellant, but appellant moved away. This cycle of events kept repeating, and Quevedo decided that appellant was trying to lure him away from the club. Quevedo then returned to the club.
A short time later, Quevedo was working at the club's entrance. Appellant and his companions appeared. Appellant pointed a pistol at Quevedo and fired it several times, hitting Quevedo. Appellant and his companions left the area. Quevedo survived, but spent nearly a year in the hospital due to his injuries.
About a month after the shooting, Quevedo selected appellant from a six-pack photographic lineup as the shooter. Rosie Rangel, who worked at the club, and Javier Ramirez, a club patron, also identified appellant from a six-pack photographic lineup as the shooter. All three identified appellant at trial.
At trial, appellant presented testimony that Pelayo, a witness to the shooting, had not identified appellant (or anyone) from the six-pack photographic lineup shown by police to witnesses. Pelayo believed that the shooter had a spider web tattoo on his elbow and that the shooter's companions called him "Spider." Ramirez also believed that the shooter might have had a spider web tattoo on his elbow, but believed that appellant called one of his companions Spider. Appellant does not have a spider web tattoo on his elbow.
Appellant also presented the testimony of Dr. Robert Shomer, an eyewitness identification expert. Dr. Shomer testified that eyewitness identifications are often wrong and can be influenced by a variety of factors.
Discussion
1. Hearsay evidence
Appellant contends that the trial court erred in admitting an out-of-court statement by a non-testifying witness that the shooter drove away from the crime scene in a red Thunderbird. He contends that this evidence was not relevant to any issue at trial and violated his constitutional rights to confrontation, cross-examination and due process. We do not agree.
As we explain in more detail below, appellant attacked the investigative process used by police to identify him as a suspect. The out-of-court statement that the shooter drove a red Thunderbird was relevant to show how the police identified appellant as a suspect.
During an Evidence Code section 402 hearing before trial, appellant's counsel made it clear that his defense was going to involve attacking the investigative process used by police in this case. One of the suspects identified by the police, Pena, was later determined to have been in prison at the time of the shooting. Appellant's counsel seemed to believe that by showing that Pena could not have been involved in the shooting, he would cast doubt on appellant's identification as a suspect. This would in turn support appellant's contention that he had been misidentified by witnesses due to a suggestive photographic lineup. Appellant's counsel stated: "Detective Winger indicates on page 1 of the follow-up that at the time of the preliminary investigation the suspects had not been identified, and then he proceeds to say, 'The suspects have been identified, and here is their information.' So Pena was identified as suspect 2, according to the officers who put him in this six-pack lineup, just like they did mine, and he got misidentified. I think that that is extremely powerful evidence for the defense because it goes to undermine the investigation of this case that was done without any corroboration. Pena was put into the six-pack the same way that my client was." The court responded in part: "[I]t initially appears to me that [the defense] may be entitled to undermine the investigative techniques that led to the defendant and led to the other person who apparently is not the right person."
The prosecutor sought to respond to this defense with evidence of why Detective Winger selected appellant as a suspect, specifically that he matched the description of the shooter in two ways: in physical appearance and by driving a red Thunderbird. There was no real dispute that the witnesses gave the same general description of the shooter, and that this description at least loosely corresponded to appellant. Any number of men could have loosely matched the general description of the shooter, however. It was a witness's statement that the shooter drove a red Thunderbird that provided the link to appellant. There was a hearing, with testimony, concerning how Detective Winger determined that appellant was a suspect.
At the conclusion of this testimony, appellant's counsel first argued the suggestiveness of the lineup. Counsel then stated to the court: "So it's my argument that what the officers have done is they have made conclusions based on their investigation that both [appellant] and Mr. Pena are the suspects. That carries a lot of weight with the jury." Counsel thus sought to show that the investigation was faulty.
During his opening statement, appellant's counsel stated that the prosecution was going to call an eyewitness who would testify that the shooter was a man "who was also described in general characteristics as a male Hispanic with glasses and a mustache, a light-blue shirt, but that he had a [spider web] tattoo on his right elbow, a very distinctive make, a very distinctive characteristic, something that stood out in his mind and something he told the police to watch out for." Counsel added that appellant did not have such a tattoo. Counsel later noted that the victim described the shooter with "a generic description: male Hispanic, mustache and glasses. That fits a lot of people." Shortly thereafter, counsel stated: "A photo display was put together by Detective Winger – and you'll have an opportunity to hear him testify in this case, that all he had was evidence that it was a male Hispanic with glasses and a mustache and that was the – and the other important characteristic was that the suspect was wearing a light-blue shirt." This continued appellant's theme that he was not a legitimate suspect, but was selected simply because he matched a very general description of the suspect. Thus, the process by which the police selected appellant as a suspect was at issue during the trial.
The witness who told the police that the shooter was driving a red Thunderbird did not testify at trial. His out-of-court statement, if offered to prove that the shooter drove a red Thunderbird, would be hearsay. (Evid. Code, § 1200, subd. (a).) An out-of-court statement may be admitted for a nonhearsay purpose if that purpose is "relevant to the dispute." (People v. Jablonski (2006) 37 Cal.4th 774, 820-821.) A trial court's determination of that issue is subject to review for an abuse of discretion. (Id. at p. 821.)
Here, the out-of-court statement was admitted for a non-hearsay purpose, to explain the detective's decision to select appellant as a suspect. The use of an out-of-court statement to explain police action is relevant where the propriety of that action is in dispute. (See People v. Smith (1970) 13 Cal.App.3d 897 [out-of-court statement by witness to police officer that a purse-snatcher had gone down an alley was admissible to establish cause for the officer's pursuit of the defendant, who was arrested in the alley].) Thus, we see no abuse of discretion in the trial court's decision to admit the witness's out-of-court statement that the shooter drove a red Thunderbird.
Appellant's reliance on People v. Lucero (1998) 64 Cal.App.4th 1107 and People v. Scalzi (1981) 126 Cal.App.3d 901 to show error is misplaced. In those cases, the Court of Appeal found error in admitting out-of-court statements to explain the actions of police officers, but did so because the reasons for the officers' actions were not in dispute. The Eleventh Circuit's opinion in Harris v. Wainwright (11th Cir. 1985) 760 F.2d 1148 is inapplicable for the same reason.
Appellant contends that, even if acceptable under California law, the admission of the out-of-court statement violated his Sixth Amendment right to confrontation and also his right to due process. Respondent contends that appellant has waived this claim by failing to specifically raise it in the trial court.
To the extent that appellant specified a basis for objecting to the out-of-court statements, he objected only on hearsay and undue prejudice grounds. Generally, a defendant's objection on hearsay grounds does not preserve a claim that his right to confrontation was violated. (People v. Burgener (2003) 29 Cal.4th 833, 869.) An objection under Evidence Code section 352 does preserve a due process claim that the ruling rendered the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 437.)
Assuming for the sake of argument that the confrontation claim is not waived, we see no violation of appellant's rights. The United States Supreme Court has held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) The Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Id. at p. 59, fn. 9, citation omitted.)
Here, the trial court twice instructed the jury that the witness's statement about the red Thunderbird was not offered for the truth of the matter asserted. Immediately after Detective Quezada testified, the trial court instructed the jury that the statement was "not coming in for the truth of the matter, meaning that it's not – we don't have that person in. In other words, information about the car we don't have that person in who gave the information, but I'm allowing it in for the non hearsay purpose to show why, to explain the . . . conduct of the officers in focusing on the particular individual in this case, in this case the defendant." At the conclusion of the trial, the court again instructed the jury that "Certain evidence was admitted for a limited purpose. . . . [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted. [¶] Specifically, I allowed in some hearsay evidence. I told you that that was admitted to allow you to understand why the officer may have done or taken whatever actions he took in pursuit of this investigation."
Since the statement was not offered for the truth of the matter asserted, there was no Confrontation Clause violation.
We also do not see any violation of appellant's right to due process. The admission of the Thunderbird evidence did not render the trial fundamentally unfair. There was very strong testimony from three eyewitnesses in this case identifying appellant as the shooter. The Thunderbird evidence was of minor importance. Appellant even managed to call the evidence into question by presenting testimony from his witness Pelayo that the shooter left in a blue Thunderbird.
We cannot agree with appellant that the prosecution exploited the Thunderbird evidence in his closing argument. The prosecutor referred to it briefly, along with other evidence, as showing that the People's identification of appellant was not a coincidence based on a general description of the shooter.
2. Mistrial
Prior to trial, the court ruled that evidence of appellant's gang membership could not be presented at trial. During trial, appellant twice moved for a mistrial, contending that the prosecutor had violated the court's ruling. The court denied the motions. Appellant contends the court erred in doing so. We do not agree.
A motion for mistrial is directed to the sound discretion of the trial court. "'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citations.]" (People v. Cox (2003) 30 Cal.4th 916, 953.)
Testimony at an Evidence Code section 402 hearing showed that Officer Quezada was a gang expert, and was familiar with appellant because appellant was a gang member known as Speedy. The officer had seen appellant and the red Thunderbird at a gang hang-out near the shooting. Before Officer Quezada testified in front of the jury, the prosecutor admonished him not to mention gangs in his testimony. This led to some awkwardness in the direct examination of the officer. In the course of questioning Officer Quezada, the prosecutor asked "What about the location [of the shooting made you focus on the defendant]?" Officer Quezada could not respond that the location was near appellant's gang hang-out. Officer Quezada's "sanitized" reply was: "That it was in close proximity where I had been watching the defendant on other occasions." This reply prompted appellant's first motion for a mistrial.
The court denied the mistrial, explaining that "I wouldn't have used that language" and it "wasn't the best way to put it" but "there's a million inferences that could be drawn from that." The court later added the statement was not "sufficiently detailed to really allow [the jury] to draw any inference whatsoever."
We agree with the trial court that "watching" is essentially an ambiguous term, and that the jury had no reasonable basis to draw any inferences from it. Clearly, Officer Quezada was familiar with appellant. The fact that the officer acquired this familiarity from "watching" appellant, as opposed to some other way, does not seem prejudicial. We cannot agree with appellant that the testimony is a "subtle species of the bad acts/criminal history evidence which has been condemned in the case law as highly prejudicial."
We also agree with the court's conclusion that the reference to "watching" was not prejudicial in part because it was brief and passing. For this reason, the court declined to admonish or instruct the jury on the use of the term, actions which could highlight the term. We do not agree with appellant that the court's decision amounted to a finding that the statement was so prejudicial that no admonition or instruction could cure the prejudice.
Detective Winger testified after Officer Quezada. Appellant cross-examined the detective on the process he used to compile the photographic lineup used in this case. Detective Winger agreed that he used a computer to help put together the photographic lineup. He explained that he first used the computer to find a photograph of appellant, which was a booking photograph, and then to find photos of others who resembled appellant. Appellant's counsel did not object to this statement. He asked: "So you're saying all these photographs are booking photos?" Detective Winger agreed.
During redirect, the prosecutor asked a number of questions about the lineups, then asked "And this six-pack that was compiled is [an] old booking photo of the defendant, correct?" Before the detective could answer the question, defense counsel objected. The objection was then discussed at a sidebar, during which appellant's counsel moved for a mistrial. The prosecutor explained that she had referred to the photograph as a booking photograph because she believed that the defense had opened the door during cross-examination. The court agreed that the jury already knew that the photographs in the lineups were booking photos. The court nonetheless directed the prosecutor not to mention booking photographs again. The prosecutor complied.
We see nothing prejudicial in the brief reference to booking photographs made by the prosecutor, since the use of booking photos was already part of the record. Further, any possible prejudice was eliminated when the court sustained the objection before the detective answered the question. The jury was instructed that statements and questions by attorneys are not evidence, and that the jury should not assume to be true any insinuations suggested by a question.
To the extent that appellant contends that the trial court should have granted a mistrial because the prosecutor's conduct amounted to misconduct, we do not agree.
The general rule is that prosecutorial misconduct violates a defendant's federal constitutional right to due process when a prosecutor's behavior amounts to a pattern of egregious misconduct that infects the trial with unfairness. Prosecutorial misconduct violates California law when a prosecutor uses deceptive or reprehensible methods to persuade a jury. (People v. Stanley (2006) 39 Cal.4th 913, 951.)
We see nothing egregious about the prosecutor's conduct, and nothing to suggest that the prosecutor deliberately violated the court's ruling, or used deceptive methods to avoid that ruling. The prosecutor admonished Officer Quezada before the officer testified. The officer's reply about "watching" was a clear attempt to avoid a specific gang reference. The prosecutor explained to the court that she believed that she was allowed to mention the booking photos because the door had been opened on cross-examination. Thus, we see no misconduct. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 388; People v. Musselwhite (1998) 17 Cal.4th 1216, 1253.) Further, as we discuss above, we see no prejudice to appellant from the vague and general reference to "watching" or the brief additional reference to booking photos in an unanswered question.
3. Prosecutorial misconduct
Appellant contends that the prosecutor committed misconduct during closing and rebuttal arguments. Specifically, he contends that the prosecutor argued that evidence was admitted for the truth of the matter when it was not, disparaged defense counsel, vouched for witnesses, and argued that the defense had not produced evidence which the prosecutor knew had been excluded by the court's rulings. We see no misconduct.
In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury. When the claim of misconduct focuses on comments made by the prosecutor before the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Berryman (1993) 6 Cal.4th 1048, 1071; People v. Clair (1992) 2 Cal.4th 629, 662-663.)
a. Excluded evidence
Appellant contends that he objected to all the prosecutor's misconduct "and the court noted improprieties, but declined to take any remedial measures." Appellant overstates his actions. There are no objections in the record to the complained-of arguments concerning excluded evidence, and no showing that an objection would have been futile. Accordingly, appellant has waived this claim. (People v. Brown (2003) 31 Cal.4th 518, 553 [absent evidence of futility, defendant must make timely objection and ask trial court to admonish the jury to preserve claim of prosecutorial misconduct].) Assuming for the sake of argument that the claim was not waived, we would find no misconduct.
Appellant contends that the prosecutor violated the trial court's order concerning evidence that the get-away car was a Thunderbird by arguing the following: "[U]pon hearing the description of the shooter and the potential get-away car in this case, Officer Quezada immediately recognized the suspect as Miguel Cruz, the defendant. After that information is learned, the defendant is put in the six-pack. Upon showing a photo of the six-pack to the victim in this case, the victim immediately recognizes the person . . . ." He contends that this argument is using the car as substantive evidence of guilt, to link him to the shooting.
As discussed in section 1 above, the evidence that a non-testifying witness identified the get-away car as a Thunderbird was admitted to explain the officer's conduct in the investigation, not for the truth of the matter that the shooter drove a Thunderbird. The prosecutor's reference to the car in closing argument was in keeping with that purpose. The remarks simply recap the chain of events leading to the identification of appellant. We see no reasonable likelihood that the jury understood the prosecutor as arguing that the shooter drove a Thunderbird, appellant drove a Thunderbird and so he must be the shooter. Thus, there was no misconduct.
Appellant also contends that the prosecutor violated a court order not to mention appellant's old booking photo by arguing the following: "They are required to look at the face, not the hairs, because they don't [k]now how old these photographs are. They don't know when these were taken. They don't know where these photographs were [compiled] from. We know because our witness detective testified when and where they got them, but they don't. The witnesses being shown these photos. So they're told don't look at the facial hair."
We do not understand the court's order to mean that the prosecutor could not mention the photographs, or the fact that they were old. The court only prohibited using the term "booking." The prosecutor complied with that order. There was no misconduct.
b. Disparagement
In her rebuttal, the prosecutor argued that the defense expert's testimony on factors that improperly influence eyewitness identifications was irrelevant because there was no evidence that the identifications were tainted. The prosecutor than argued: ''What he's relying on to confuse you, and this is what I call a red herring, is they wanted to distract you from the evidence in this case . . . ." Defense counsel objected that the argument was "disparaging to counsel personally." The court overruled the argument, explaining that this was fair argument and that the court believed that the jury understood that. Appellant contends that the trial court was mistaken. We do not agree.
"'An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) That was the case here. (See also People v. Bell (1989) 49 Cal.3d 502, 538 [no misconduct where prosecutor said defense counsel's job was to confuse the jury, and "throw sand in your eyes"].)
c. Vouching
Appellant contends that the prosecutor's statements of belief and knowledge constituted improper vouching because the statements suggested to the jury that the prosecutor had information bearing on guilt that had not been disclosed at trial.
We agree with respondent that appellant forfeited the claims by failing to make contemporaneous objection to the vouching. (People v. Monterroso (2004) 34 Cal.4th 743, 785 ["By failing to make contemporaneous objection to the remaining comments, where the record supports no contention that to do so would have been futile, defendant failed to preserve those claims of prosecutorial misconduct" during argument.].) Here, for example, the prosecutor could have used different language if appellant had made his objections known.
When appellant objected after arguments were complete, the trial court did state that it would have been better for the prosecution to say "the evidence shows." Although the trial court did not think it was worth interrupting the argument to point this out to the prosecutor, the situation would have been different if the proceeding had been interrupted by an objection.
Assuming for the sake of argument that appellant's claim was not waived, we would see no improper vouching. It is misconduct for the prosecutor to express a personal belief in the defendant's guilt if there is a substantial danger that the jurors will interpret the statement as meaning that the belief is based on information or evidence outside the trial record. Expressions of belief are proper if the prosecutor makes it clear that the belief is based on evidence in the record. (People v. Mayfield (1977) 14 Cal.4th 668, 781-782.)
Appellant objects to the following remarks:
"I believe that all the witnesses who testified in this case tried to the best of their ability to be honest."
"Now I believe [defense witness] Mr. [Pelayo] was being honest when he testified . . . but I think the answer is he really didn't have any meaningful opportunity to observe."
"I believe, based on [Mr. Pelayo's] testimony, you can't really rely that he got a good look at the person."
"I don't believe the People's case is a house of cards."
The defense claim of tainted identification "I don't know think is very valid."
"I believe what [a witness giving conflicting testimony] was doing was a clarification at that point."
"Here we know that this act was committed from the following evidence."
"We know that three shots were fired."
"Now, I want to go into what is the most important part of this case, which is the identification of the shooter who we know to be the defendant."
We do not understand these remarks to suggest that the prosecutor had information outside the trial record showing guilt, and we do not see a danger that the juror would so understand the statements. There is nothing to suggest that the prosecutor's remarks about witness honesty are based on anything other than the witness's demeanor at trial. The remaining remarks are expressly based on evidence in the record.
d. Failure to produce exculpatory evidence
Appellant contends that the prosecutor's comments about his failure to produce evidence was improper because the prosecutor knew that appellant had been deterred from calling an alibi witness due to the court's ruling on impeachment of that witness. He contends that these comments also amounted to Griffin error. We see no impropriety or error.
Griffin v. California (1965) 380 U.S. 609.
It is well-settled that a prosecutor can comment on a defendant's failure to present obvious evidence. (See, e.g., People v. Johnson (1989) 47 Cal.3d 1194, 1236 [It was not misconduct for the prosecutor to state: "Obviously, if there has been or is some defense to this case, you'd either have heard it by now or for some reason nobody's talking about it."].)
Griffin forbids either direct or indirect comment on the failure of the defendant to take the witness stand. (People v. Hughes, supra, 27 Cal.4th at p. 371.) Thus, it is error for the prosecutor to state that certain evidence is uncontradicted or unrefuted when the evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. (Ibid.) It is not error to comment on "the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses." (Id. at p. 372.)
In his opening statement, appellant's trial counsel stated that appellant's wife, Adrianna Vasquez, would testify and provide appellant with an alibi. Counsel ultimately decided not to call Vasquez because she could be impeached on a number of points.
During closing argument, appellant's trial counsel began to discuss his failure to call Vasquez, stating: "So we didn't call Adriana Vasquez –" The prosecutor's objection to this discussion was sustained. Appellant's counsel then continued: "You didn't hear anyone testify to [appellant] not being at the scene except for Pablo [Pelayo] and [you] don't need to because [Pelayo] proved he was there, actually there and saw the shooter. The shooter had a [spider web] tattoo. And the Constitution says that Miguel Cruz doesn't have to get up and explain why he was there, or where he was, or where else he was that night."
Appellant points to the following argument by the prosecutor, made in rebuttal: "There's just one last comment that I would like to make. It is true that the defense has no obligation, no duty to bring forth evidence in this case. They don't have to. The People can present their case, and they just have to sit there if they believe we haven't proved our case. However, the defense's comment – they don't have a duty to do that, but do you think they would hold back evidence if they believe that there was evidence to exonerate the defendant? I don't believe so. They're relying on you – [interrupted by objection] They're relying on you to get confused. They're relying on you to look at this case in piece-mail – [interrupted by objection] When I am asking you to look at the totality of the all the evidence, and look at the big picture and not the small picture."
Appellant chose to mention Vasquez in his opening statement as an alibi witness, but then did not call her as a witness. We see nothing improper in the prosecutor's allusion to this failure. Appellant was not barred by a court ruling from calling Vasquez. He chose not to call Vasquez because the court ruled that she could be impeached on various grounds, that is, he chose not to call her because he judged that the jury would not believe her. Clearly, appellant would not have held back an alibi witness he deemed credible.
Since appellant had earlier referred to an alibi witness, there was at least one witness other than appellant who could contradict or refute the People's evidence. Thus, there was no Griffin error.
4. Photographic lineup
Appellant moved before trial and again during trial to suppress the identifications in this case on the ground that they were the product of unduly suggestive identification procedures. Appellant also made a motion for a new trial on the basis of the identification procedures. Appellant contends that the trial court erred in denying these motions. We see no error.
Due process requires the exclusion of identification testimony only if the identification procedures used by the police were unnecessary and unduly suggestive and the resulting identification was also unreliable. (Manson v. Brathwaite (1977) 432 U.S. 98, 99; People v. Yeoman (2003) 31 Cal.4th 93, 123-124.) The question is "'whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.'" (People v. Yeoman, supra, 31 Cal.4th at pp. 124-125.) The defendant bears the burden of showing an unreliable pretrial identification procedure. (Id. at p. 123.)
According to appellant, the suspect was described as wearing glasses and having a bald, shaved head or very short cut hair and wearing a light-blue shirt. Appellant contends that his photograph stands out in the lineup because he is the only person in the lineup with a shaved head who does not have a goatee and is wearing a blue shirt, and thus the only person to match the description of the suspect.
We have reviewed the photographic lineup at issue and see nothing suggestive about appellant's photograph, which is photograph number 3. The photographs of all six individuals chosen for the lineup look quite similar. The size and shape of their faces is similar. They all have mustaches and glasses. Appellant does not stand out.
Appellant is not the only person with a shaved head. The men in photographs 4 and 5 also have shaved heads. The men in photographs 2 and 6 have very short cut hair, which is also consistent with the description. Appellant does have a small goatee, consisting of a patch of hair under his lower lip and short hair on his chin. The man in photograph 2 has a similar short goatee. Appellant is not the only person wearing a blue shirt. The man in photograph 5 is wearing a medium blue shirt. And as respondent points out, one witness described the suspect as wearing a polo shirt. The men in photographs 2 and 6 are wearing polo shirts. Appellant is wearing a t-shirt.
To the extent that any photograph stands out, it is photograph number 1. The man in that photograph has the longest hair and the thinnest mustache. He has no chin hair at all.
Appellant also contends that the lineup was suggestive because the letter "A" is written in the top right corner of the lineup, and his photograph is in the top right corner. The letter appears in different places and sizes on the various copies of the lineup. The letter is not large. We see nothing about it which draws the eye, let alone suggests that it is pointing to one of the photographs. Appellant's reliance on People v. Carlos (2006) 138 Cal.App.4th 907 is misplaced. In that case, the defendant's name and identification number were written directly below his photograph. There was no other writing on the lineup. That is not the situation here.
Appellant further contends that the witnesses contaminated each other. At most the evidence shows that Quevedo told Ramirez that he had identified a suspect from the lineup. There is nothing to suggest that Quevedo told Ramirez which suspect he selected. Further, Ramirez was not certain whether the conversation occurred before or after Ramirez viewed the lineup. Appellant has not shown any contamination.
5. Court security fee
The trial court imposes a $20 security fee on appellant's attempted murder conviction only. Respondent asks us to modify the abstract of judgment to impose a security fee of $20 pursuant to section 1465.8 for the assault with a deadly weapon conviction. Appellant contends that respondent has forfeited this issue by failing to raise it below, and further contends that the fee should not be imposed on the assault conviction because the court stayed that conviction pursuant to section 654.
A court security fee pursuant to section 1465.8 is mandatory and must be imposed for every conviction suffered by a defendant regardless of ability to pay. Since the fee requirement is mandatory, it cannot be waived. (See People v. Smith (2001) 24 Cal.4th 849, 852-853 [imposing mandatory parole revocation fine for the first time on appeal]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414 [lab fee and penalty assessment]; People v. Stone (1999) 27 Cal.App.4th 707, 717-718 [penalty assessment].)
Since appellant suffered convictions for two offenses, the trial court was required to impose a security fee on both convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 863, 865-867.) This is true even when a conviction is stayed pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Accordingly, we will grant respondent's request.
Appellant argued that Crittle is wrongly decided. We do not agree.
Disposition
We order the abstract of judgment modified to add a security fee of $20 to the count 2 assault with a deadly weapon conviction, for a cumulative total of $40 in security fees. We affirm the judgment of conviction in all other respects.
We concur: MOSK, J., KRIEGLER, J.