Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C141531.
Pollak, J.
Defendant Rondell Johnson appeals following his conviction for homicide, robbery, attempted homicide, attempted robbery, and multiple other counts stemming from a series of crimes most of which were committed on October 3, 2000. Defendant challenges only the fairness of a lineup that occurred on October 4, 2000, at which several of the victims identified him as the perpetrator of the crimes. We find that the lineup was not unduly suggestive and shall affirm.
BACKGROUND
On April 29, 2004, defendant was charged by information with 20 crimes as follows: 1) murder of Sareth So (Pen. Code, § 187, subd. (a)) with an allegation that the murder was committed during a robbery (§ 190.2, subd. (a)(17)(A)) and with use of a firearm causing death (§§ 12022.7, subd. (a), 12022.53, subd. (d)); 2) attempted murder of Khout Oak (§§ 187, subd. (a), 664) with an allegation of use of a firearm; 3) attempted second degree robbery of Khout Oak (§ 211) with an allegation of use of a firearm causing great bodily injury; 4) second degree robbery of Hai Van Le with an allegation of use of a firearm causing great bodily injury; 7) carjacking of Venius Winn (§ 215, subd. (a)) with an allegation of use of a firearm; 8) second degree robbery of John Williams with an allegation of use of a firearm causing great bodily injury; 9) second degree robbery of Prentice Gray with an allegation of use of a firearm causing great bodily injury; 10) second degree robbery of Terry Edington with an allegation of use of a firearm causing great bodily injury; 11) second degree robbery of Ralph Santiago with allegations of use of a firearm and discharge of a firearm (§ 12022.53, subd. (c)), personal use of a firearm (§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and that defendant knew a principal was armed with a firearm during the commission of the offense (§ 12022, subd. (d)); 12) attempted murder of Ralph Santiago with an allegation of use of a firearm and that defendant knew a principal was armed with a firearm during the commission of the offense; 13) attempted second degree robbery of Gilberto Arreguin with an allegation of use of a firearm and that defendant knew a principal was armed with a firearm during the commission of the offense; 14) assault with a semiautomatic firearm on Gilberto Arreguin (§ 245, subd. (b)) with allegations of use of a firearm, great bodily injury (§ 12022.7, subd. (a)), and that defendant knew a principal was armed with a firearm during the commission of the offense; 15) second degree robbery of Michael Paige with an allegation of use of a firearm causing great bodily injury; 16) attempted murder of Michael Paige with and allegation of use of a firearm; 17) second degree robbery of Raymond Marquez with an allegation of use of a firearm causing great bodily injury; 18) second degree robbery of James Cuba with an allegation of use of a firearm causing great bodily injury; 19) attempted second degree robbery of Larry Rhymes with an allegation of use of a firearm causing great bodily injury; 20) assault with a firearm on Larry Rhymes with an allegation of use of a firearm; 21) receiving stolen property, a AAA card (§ 496, subd. (a)); and 24) possession of a firearm by a felon (§ 12021, subd. (a)(1)). It was additionally alleged that defendant had suffered two prior convictions and had not remained free from prison for five years subsequent to either. (§ 667.5, subd. (b).)
The following listed numbers signify the count numbers in the information. Some counts refer only to the codefendant charged in the information and therefore are not listed here.
Further statutory references are to the Penal Code.
Defendant waived his right to a jury trial. At the court trial there was substantial evidence of the following facts:
John Williams testified that defendant held a gun to his chin when he was robbed in a Laundromat on October 3, 2000. After Williams gave defendant money, defendant walked over to Prentice Gray, “placed the gun behind his back and asked him for his money and keys.” Gray was 10 to 12 feet from Williams. Williams identified defendant at the lineup described more fully below. He told the police that the man who robbed him was between five feet four inches and five feet six inches tall and 130 to 140 pounds. He testified that in making the identification at the lineup the characteristic most important to him was defendant’s “face because how close he was to me.” He was confident that defendant was the man who robbed him
Gray died prior to trial.
Michael Paige, a robbery victim who was shot, testified that the man who robbed him at approximately 4:00 a.m. on October 3 was African-American. He stated that in the hospital three days after the robbery he watched the videotape of the lineup and was confident that he picked the man who robbed him based on his height, his clothes and his face. He testified that the man who robbed him was five feet nine or ten inches tall. When shown the videotape of the lineup at trial (when defendant was not in the courtroom), Paige chose number four in the lineup, but defendant was in position number three. He testified that he was “not really sure,” explaining, “When I seen the lineup the first time, it was kind of hard to tell. I was on medication in the hospital, so it was kind of hard.” When asked if he saw the person in court who robbed him, he replied, “it’s been a long time, five years, and people change, so it’s hard to say.” He was unsure if defendant was the man who shot him. Paige testified that he was “five six or five seven” and that the man who shot him was taller than Paige, though he did not know by how much. Paige identified the watch taken from him in the robbery that was recovered from defendant’s pants pocket when he was arrested.
The record does not indicate who Paige identified in the lineup when shown the videotape in the hospital.
Thomas Bartolero testified that he was robbed on September 16, 2000. At approximately 10:30 p.m., he was with a friend in his car when “someone came to my window, which I had left open, and pointed a gun at me and said he wanted my money. [¶] . . . [¶] He reached in and felt around my pocket and told me to empty out my pocket. So I pulled out my wallet. He grabbed that. And he also noticed a small compartment to the left side of my steering wheel and he opened that, grabbed some cash out of there.” The wallet contained a “driver’s license, Triple A card, bank card, old receipts.” There was “another man who came to the passenger side window, which was also rolled down, and he reached in and checked to see if [his friend] had any money and reached across, grabbed my keys out of the ignition, as well as opening up my glove compartment, taking everything out of there.” Both men were African American. Bartolero’s AAA card was later found with defendant’s identification card at defendant’s house.
Larry Rhymes testified that on October 3, 2000, at approximately 4:45 a.m., when dark, a car pulled alongside his car and the driver asked if Rhymes knew him. Rhymes answered that he believed he knew him. “Then he jumped out of his car and said ‘you don’t know me’ and pulled down his beanie cap. He . . . clicked back some . . . automatic weapon, and pulled down his mask. He had a beanie cap that was stretched down with a hole and eyes you could see out of.” Defendant “came toward me and I bent my head down in the car and I smashed on the gas and drove to the back of the [apartment complex].” Defendant followed in his car. Rhymes stopped at the gates of the complex, which were locked, and tried to get out of his car but fell. Defendant “pulled up. He got out and asked me where was my money, give me your money. Hit me in the head a few times. I fell back down. He keep pulling, the chain went back to the gun again and clicked at my head. I had my hands over my head. I told him I didn’t have any money on me, that I would have to go home.” When defendant looked around, Rhymes ran. He heard defendant following him, “talking about killing me and a lady friend of mine.” Rhymes eventually encountered the police who took him to the hospital.
Rhymes testified that he recognized defendant at the time of the assault, though he did not know his name. He identified defendant at trial. He stated that he had seen defendant “at least two or three times” prior to the assault. He identified defendant at the lineup as the man who had assaulted him.
Larry Rhymes’ brother Kenneth testified that on the morning of October 3, he was waiting in the house for Rhymes to give him a ride to work . Rhymes went outside to warm up the car, and when he did not return, Kenneth went outside to look for him. Defendant appeared wearing a mask and pointing a gun and told Kenneth to get in the house. Kenneth testified that he knew the man was defendant even though he was wearing a mask because defendant returned approximately 30 minutes later not wearing a mask “and said, ‘your brother is with me. He’s all right.’ ” Kenneth identified defendant with a question mark at the lineup because he “was pretty much sure, but . . . didn’t want to convict somebody that didn’t do it.” Nevertheless, he said that defendant’s face was the same as the man to whom he had spoken. His attention was also drawn to defendant in the lineup because defendant was the only one in the lineup who turned his face to the ceiling when he spoke.
Khout Oak testified that in October 2000 he and his wife Sareth So were employed delivering newspapers. On October 3, he drove to Emeryville, where he picked up the day’s newspapers, and returned home at approximately 4:30 a.m. to meet his wife and Hai Le, both of whom helped deliver the newspapers. When he got out of the van, he noticed that Le was in his car talking to a Black man who was standing beside the car. Le later identified the man as defendant. Defendant approached Oak and asked for money, threatening to shoot him. Oak walked around the front of the van to unload the newspapers and defendant followed him. His wife then came out of the house to help unload the newspapers. Defendant walked toward her and “put a gun toward my wife, pointed a gun to my wife and then said that if you don’t give me money, I’m going to shoot your wife.” Oak approached his wife and defendant pointed the gun at him and tried to shoot, but the gun did not discharge. Defendant “held my wife’s hand and then pushed her into . . . the van, and then he shoot in there. [¶] . . . [¶] The first, the second time, the bullet did not c[o]me out. I heard the click.” “After that, my wife struggle and then [he] push my wife into the van and then the third time he tried, I heard the gun sound.”
At trial, Oak described the man who shot his wife as an African-American male between five feet nine inches to six feet tall with a medium build. Oak could not describe the man’s skin tone, what he was wearing or if he had facial hair because it was dark at the time of the incident. At trial, Oak pointed to defendant and said, “I look at that person, the size and the height look similar to the one I remember. And I’m not sure whether he is the one or not.” At the lineup, Oak believed that the person in position number one had a voice like the man who shot his wife, but nothing else about him was familiar. In his interview with the police after witnessing the lineup, Oak also stated that number one was a similar height to the man who shot his wife.
Hai Le testified that on the morning of October 3, he drove to Oak’s house and parked his car. Defendant arrived, parked his car, approached Le and told him to roll down his window. When Le did so, defendant pointed a gun at Le and told him to give him money. Le gave his wallet to defendant. Oak arrived and defendant went to Oak’s van. Le identified defendant at trial as the man who robbed him. He was confident that he recognized defendant’s face. At the lineup he marked defendant with a question mark. He stated that he was “100 percent” certain that number three was the man who had robbed him but he was not completely sure that it was the same person who killed Sareth So, since he did not see the shooting but only heard the gunshot.
Raymond Marquez testified that on October 3, he and a coworker, James Cuba, were in a tow truck repossessing cars. Defendant approached them and asked them to tow a car. When Marquez and his partner were preparing to do so, defendant pointed a gun at Marquez, demanded money and threatened to shoot him. Marquez took $2 from his pocket and handed them to defendant. Defendant also took Marquez’s cell phone and credit card from the truck. He told Marquez to call his coworker and when the coworker approached, defendant pointed the gun at him and said, “Give me your money or I’m going to shoot you.” He went through the coworker’s belongings, then ordered the two men to get back in their truck. They did so and drove away. During the incident defendant told Marquez that he had “already shot five people” that night. Marquez’s cell phone was found in the car that defendant was driving when he was arrested.
Marquez described the robber as having “short, thin, two-inch hair. He had a chin, stripe beard. I believe a goatee. About five ten, 200 pounds. [¶] . . . [¶] Black.” At around 10:15 that morning, the police took Marquez to view defendant who was standing by a police car. Marquez identified defendant as the person who had robbed him. He also identified defendant at a hearing in 2003 and at trial. Marquez identified his cell phone and credit card at the police station.
Ralph Santiago testified that on October 3 at around 3:00 a.m. he was moving his car into a private lot at the bakery where he worked. Two Black men pulled alongside him in a car and asked for directions. The passenger got out of the car, approached Santiago, and demanded the hamburger Santiago was eating. Santiago gave him the hamburger. The man threw the hamburger back at Santiago “and said that he wanted my money.” Santiago told him he did not have any money. The man showed Santiago a gun in the waistband of his pants. Santiago gave him a green ceramic mug with coins in it. The man threw the mug into his car and began to feel in Santiago’s pockets. He told Santiago to get out of the car. During the confrontation, the driver of the other car was pointing a gun at Santiago. Santiago got out of his car and the passenger of the other car began to feel his pockets again. The driver of the other car said, “Just shoot him, man.” The passenger stepped back and lifted the gun. Santiago put up his arm as the man shot him. The bullet went through his forearm and into his stomach. The passenger got back in the car and the men drove away. Santiago memorized the license plate number of the departing car and wrote it down after he ran inside the bakery.
At approximately 10:00 a.m. the morning of the attack, the police took Santiago to view a suspect, whom he identified “as possibly being the driver of the vehicle,” though he was uncertain because the man was too far away. At the police station Santiago identified his green ceramic mug . Santiago attended the lineup on October 4 and marked defendant with a question mark “[b]ecause there was just a little bit of doubt in my mind.” He did not “actually get to see the driver’s full body. He was sitting down in the car seat leaning over, so, you know, I had doubt.” He relied mostly on the voice in making his identification. Defendant also “looked more like the assailant than any of the others that were standing there.” At the preliminary hearing and at trial he identified defendant as the driver. The street where the assault took place was well-lit and Santiago had no trouble seeing his assailants clearly.
Terry Wayne Edington testified that he was walking home on October 3 at about 2:30 a.m. when he was approached by two African-American men. One said, “What you got.” Both men had guns. He described one of the men as “about six feet, six one or so . . . maybe 160, 165, -70 pounds.” The second man he described as “shorter and heavier” “five eight, five nine, maybe five ten . . . maybe 170 pounds or so.” The taller man “brushed around and finding my wallet, just kind of [patting] me down. When he found the wallet in the front right pocket, he pulled it out there, threw it and standing on the other side. And the shorter guy was using his gun to hit me with in my pocket, front pocket, and hit my cell phone. And that was when he made a statement. ‘You got mobile. I’ll kill this nigger.’ And I said, ‘You don’t have to shoot me. You want it, take it.’ ” The man took the cell phone and Edington’s keys. After the two men left, Edington went to a telephone booth and called the police. Edington attended the October 4 lineup and identified defendant as the shorter of the two men who robbed him. He also identified defendant at trial.
Venius Winn testified that on September 30, 2000, his car was carjacked by defendant. He recognized defendant from a previous contact, when an acquaintance had asked him to help obtain paint to paint defendant’s house. On the day defendant took Winn’s car, he threatened Winn with a silver .25 automatic, which Winn could identify because he used a similar gun when he was a police officer. Defendant was driving Winn’s car when he was arrested. Winn attended the October 4 lineup and identified defendant as the man who had taken his car. He also identified defendant at trial.
Jesus Nava Angel testified that around 3:30 a.m. on October 3, he and three other men were driving from San Jose to Oakland. Nava was asleep in the back seat. They had stopped to drop off one of the men, Arreguin, and Nava was awakened by someone knocking on the passenger window. He saw a Black man outside of the car. After they left Arreguin, the man followed him. Nava returned after approximately five minutes and found that Arreguin had been shot. Nava attended the lineup the following day and identified defendant as the man who knocked on the car window. The man’s face was fresh in his mind at the time of the lineup. He also identified defendant at trial.
Lieutenant Yoell of the Oakland Police Department testified that on the morning of October 3, he followed defendant by car because of descriptions of the vehicle that had been given by various victims of crimes committed that morning. The green coffee mug taken from Santiago was in the car that defendant was driving.
The trial court found defendant guilty of first degree murder with firearm use causing death (count 1); guilty of attempted second degree robbery with firearm use causing great bodily injury (counts 3 and 19); guilty of second degree robbery with firearm use causing great bodily injury (counts 4, 8, 9, 10, 15, 17, and 18); guilty of second degree robbery with a firearm (count 11) but that the additional allegation was not true; guilty of attempted homicide with a firearm (counts 12 and 16) but that the additional allegations were not true; guilty of assault with a semi-automatic firearm (count 14) but that the additional allegations were not true; guilty of assault with a firearm (count 20); guilty of receiving stolen property (count 21); and guilty of possession of a firearm by a felon (count 24). The court found that defendant was not guilty of attempted murder (count 2); carjacking (count 7); or attempted second degree robbery (count 13).
Defendant was sentenced to 75 years to life imprisonment. and timely filed a notice of appeal.
The Attorney General concedes that the abstract of judgment should be corrected to reflect that defendant was sentenced to 25 years to life imprisonment on count 1, and not, as the abstract of judgment currently states, life without possibility of parole.
DISCUSSION
On appeal, defendant challenges the court’s refusal to suppress the lineup identifications as unduly suggestive, and makes the related contention that the lineup should have been suppressed because defendant was denied a prompt arraignment prior to the lineup.
Sergeant Cruz of the Oakland Police Department testified concerning the lineup procedures. On October 3, 2000, he was assigned to investigate the So homicide and the other robberies and shootings with which defendant was charged. The lineup occurred on October 4 at around 7:00 p.m. Defendant was under arrest but had not yet been charged. Six people, including defendant, participated in the lineup. Defendant chose the five “fillers” in the lineup from inmates at the jail where he was being held. Sergeant Cruz changed one of the men because “he was a man in his mid 40s and I felt that was too over the top for that lineup” because the man was approximately twice defendant’s age. Defendant approved all of the fillers and did not request that any of them be changed. Defendant was permitted to select the order in which the men appeared in the lineup. Defendant appeared in the number three position.
There were 17 witnesses present at the lineup. They sat in a room separated from the men in the lineup by a one-way mirror. Each was given a card on which to mark the number of the individual whom they identified. Before the identification process began, witnesses were instructed not to mark their cards until all members of the lineup had been dismissed. Not all 17 of the witnesses marked their cards, but those who did, made their marks after the men in the lineup had left. Some made tentative identifications with a question mark instead of an “x” on their cards, and some identified members of the lineup other than defendant.
The videotape of the lineup was shown to three other victims who were hospitalized and could not be present at the jail. One of the shooting victims who watched the videotape in the hospital identified defendant, but “increasingly became more tentative.” He “seemed to give a lot of weight to the voice of the person who shot him,” initially identifying defendant’s voice, but then stating “that number two or number six also sounded like the suspect who shot him.”
The witnesses described defendant’s height as between five feet seven inches and five feet nine inches. Defendant is listed in the police report as being five feet nine inches tall, though at the hearing on the motion to exclude the lineup he was measured and found to be between five feet seven and five feet eight inches tall. The other members of the lineup were five feet ten inches, five feet nine inches, five feet seven inches, six feet two inches and six feet four inches tall. The witnesses ascribed a range of skin tones to defendant, with only some describing him as “dark complected.” The other person who was closest to defendant’s height, number five in the lineup, had a lighter complexion than defendant, but he was about the same age, was the same ethnicity and had the same hairstyle as defendant. Sergeant Cruz testified that “hair length is important. The characteristics of a person are important. Height, I give limited value to height and that’s because in my experience most IDs aren’t based on height. Somebody doesn’t tell me, oh, that person, he’s the right height, that’s him. Folks don’t tell me that. They tell me that’s him. That’s his face. That’s him. That’s the way he acts. That’s him. That’s the way he moved. That’s him. That’s the way he talks. Height has a limited value, in my experience, as far as physical lineups.”
Defendant testified about the lineup. He said that Sergeant Cruz instructed him “to go up to the jail to pick some people that resemble my complexion, my size and weight . . . .” “[T]hey took me to the felony tank side of the jail and there was some people in there that resemble me, but their hairstyle was different, the hair was different. So when they got me over there I ask them can I go to the other tank because I see somebody that look familiar to me, to my size and complexion and weight. They wouldn’t let me go over to that side of the tank. They just select some people. I selected some people. . . . I picked I think two people out of the six, beside myself, two people that I picked, and the rest I believe they picked, from my knowledge.”
Defendant stated that he picked the men who appeared in positions number one and five in the lineup. He stated that he picked them based on “[h]eight and complexion and the weight,” although he stated that “number five was a lot more lighter than me, but he was the same height as myself.” He stated that he remembered picking number five “because when they walked over to the felony tank, I picked a guy with dreadlocks and they said he couldn’t come. I think they replaced him with number two. But I remember, to my knowledge, it’s been five years, but I remember picking five.” He continued, “I don’t even remember picking two, four and six. I don’t remember that. Because I knew I wouldn’t pick number four because he was taller than me. Six is way taller than me. I know I wouldn’t pick four and six. Maybe I picked two. Two—two and—one and two maybe, but I think to my knowledge I picked five, if I’m not mistaken.” When asked “how many people did you personally pick out to be in your lineup,” he replied, “It was really three, but they told one to go back.”
On cross-examination defendant stated, “I think from what I can remember, I think that they had some people already, and that when they showed me these people, I said no, that these people don’t match my description. So I said, no, let me pick the people. And he said, no, we already had these people. And I didn’t—I didn’t okay that.” He stated that he told the officers “several times” that he did not want the three men they had chosen participating in the lineup. He stated that when he arrived at the jail, the police “had five picked out” for the lineup, and that they allowed defendant to replace two men but not the other three.
Defendant moved to suppress the identifications made at the lineup. The trial court ruled that it “believes the testimony of the officers that the defendant did pick the fillers. Sergeant Cruz did in fact replace the older person as Sergeant Cruz properly instructed the witness. (Sic.) Sergeant Cruz testified that, in his opinion and his experience, the voice, the way a person walks, the profile, hair, face and their age are more significant characteristics than the person’s height. The fact that some of the people put a question mark on the chest of number three, I think belies the fact that the lineup was unduly suggestive or otherwise they would have placed an “x” on the chest. So anything about the lineup that might have had an impact, I think would only go to the weight since even the people—seven of the people I believe placed a question mark, so it wasn’t so suggestive that they could absolutely identify the defendant but weren’t sure. So I think that there’s nothing about the way the lineup was conducted that was so unduly suggestive that would taint the in-court identification . . . . Therefore, the motion to strike the in-court identification with prior identification of any witnesses is denied.”
Defendant bears the burden of showing that the identification procedure was unreliable. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) “The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.” (People v. Gordon (1990) 50 Cal.3d 1223, 1242, overturned on other grounds by People v. Edwards (1991) 54 Cal.3d 787, 835.) “ ‘It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo.’ ” (People v. Johnson (1992) 3 Cal.4th 1183, 1216.)
“[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa, supra, 19 Cal.4th at p. 413.) “ ‘A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.’ ” (People v. Hunt (1977) 19 Cal.3d 888, 894.)
“A conviction based on eyewitness identification at trial after a pretrial display of photographs, including photographs of the defendant, ‘will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” (People v. Hunt, supra, 19 Cal.3d at p. 894.) “[R]eliability is the linchpin in determining the admissibility of identification testimony . . . .” (Manson v. Brathwaite (1977) 432 U.S. 98, 114.) “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. Carpenter (1997) 15 Cal.4th 312, 367 (Carpenter).)
Defendant argues that the lineup was improper because all 17 witnesses shared one room while observing the lineup. The court in People v. Cook (2007) 40 Cal.4th 1334, rejected a similar contention, noting that the defendant in that case “ ‘assumes’ ” that the two witnesses must have influenced each other’s reaction but “cites no evidence of any actual conferring or other influence these witnesses exerted on each other.” (Id. at p. 1354.) The court was also persuaded by the Attorney General’s argument that only one of the two witnesses actually identified the defendant at the lineup. (Ibid.) In that case, the defendant also argued that the lineup was impermissibly suggestive because he was the shortest man, but the court also rejected that contention, noting that the members of the lineup “all were ‘white, male adults, relatively similar in body build,’ that no one ‘obviously stands out’ in terms of height and weight.” (Ibid.) Similarly here, some of the witnesses identified defendant while others did not. The trial court viewed the videotape of the lineup before ruling on defendant’s motion, and this court too has viewed the videotape. Like the trial court, we find in the tape no such differences in the appearance of those in the lineup or in the manner in which the lineup was conducted to have been suggestive. Nor was there any indication that witnesses conferred or were influenced by others in making their identifications. Defendant points to no evidence that the witnesses were influenced by the responses of other witnesses.
In People v. Carpenter, supra, 15 Cal.4th at page 367, as in this case, the “[d]efendant claims various physical differences between him and other participants made the lineup impermissibly suggestive. We disagree. Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him. [Citation.] There was nothing here. All six participants were bearded and wore identical clothing. Defendant was neither the oldest nor the youngest of the participants, neither the tallest nor the shortest, neither the heaviest nor the lightest. The trial court, who observed each of the six in person, found that, with one exception, the others resembled defendant ‘very much.’ Whatever may be the standard of review of the ultimate question of suggestiveness, this specific factual finding is binding on an appellate court that cannot personally view the participants.”
In People v. Johnson, supra, 3 Cal.4th at page 1216, the defendant challenged a lineup as unduly suggestive for a variety of reasons, including the fact that the defendant was the only person in the lineup wearing jail clothing and the fact that the police confirmed to the witness that they had a suspect in custody. The court rejected this challenge because “[a]ll of the photographs were of Black males, generally of the same age, complexion, and build, and generally resembling each other. Thus, defendant’s photograph did not stand out, and the identification procedure was sufficiently neutral. [Citations.] Minor differences in facial hair among the participants did not make the lineup suggestive.” (Id at p. 1217.)
As in People v. Carter (2005) 6 Cal.4th 1114, 1163, our review of the lineup “indicates that defendant overstates the significance of the distinguishing characteristics seen in the photographs, and overlooks their more compelling general similarities.” The men in the lineup, while varying somewhat in height, are mostly of similar build. All are wearing jail clothing. Their hair styles are remarkably similar, with the exception of the man in position number one, whose hair is slightly longer than that of the other men. The men have a range of complexions and while number five is lighter in complexion than the other men, the remaining men are again strikingly similarly complected. The lineup was not unduly suggestive. There was, of course, some variation in the appearance of the members of the lineup, but the basic characteristics of the men—hair style, skin tone, facial hair, face shape—were strikingly similar. Even the height of the men, on which defendant places so much emphasis, did not vary dramatically. “ ‘[T]here is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance.’ ” (People v. Blair (1979) 25 Cal.3d 640, 661.)
We need not reach the overall reliability of the identifications. “Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.” (People v. Yeoman (2003) 31 Cal.4th 93, 125.) Here, several victims either failed to identify defendant or expressed uncertainty in their identification. The tentative identifications and the witnesses who failed to identify defendant provide a compelling additional indication that the lineup was not unduly suggestive. Moreover, to the extent other victims confidently identified defendant, the record contains numerous indications that their observations were reliable. Winn and Larry Rhymes recognized defendant from earlier contacts. Kenneth Rhymes had a good opportunity to observe defendant when defendant returned and spoke to him. Moreover, Kenneth testified that his attention was drawn to defendant in the lineup because defendant looked up at the microphone when he spoke in an apparent attempt to avoid being observed clearly. Marquez did not attend the lineup but identified defendant the day of the crimes, at a hearing and at trial. Le had ample opportunity to observe defendant during the events leading to the shooting of his wife. Williams observed defendant at close range in a well-lit Laundromat and relied on defendant’s face, not his height, in making his identification. Edington was also in close proximity to his assailants and had the opportunity to observe them. Nava identified defendant after seeing him directly on the other side of a car window. All of the witnesses except Winn made their identifications within hours of the assaults. Physical evidence recovered from defendant, from the car he was driving, and from his home connected him to the crimes. Defendant does not challenge the sufficiency of the evidence to sustain his multiple convictions—and we have not belabored this already extended opinion to describe yet more evidence unrelated to the eye-witness identifications that links defendant to several of the crimes. In short, the record provides absolutely no basis to question the reliability of the evidence identifying defendant as the perpetrator of the many crimes for which he was convicted.
Finally, defendant argues that he was denied his right to counsel at the lineup. He reasons that under section 849 there was undue delay between his arrest and arraignment and that had he been timely arraigned he would have been assigned counsel who would have been present to object to the composition of the lineup. Defendant was placed under arrest in the afternoon of October 3, 2000. At the time of the lineup, 7:10 p.m. on October 4, defendant was in custody but had not been charged. He was charged on October 5 at 10:30 a.m. Given the number of charges and the extent of the investigation necessarily involved, there is no basis for any suggestion that the preparation of the complaint or the arraignment were delayed in order to avoid appointing counsel who would represent defendant at the lineup. Defendant was informed he had the right to counsel during questioning on October 3 and after the lineup on October 4, and on both occasions he expressly waived counsel.
Section 849, subdivision (a) provides: “When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.”
Defendant concedes that he did not raise the timeliness of his arraignment at the arraignment itself or at trial. A claim of unreasonable delay in arraignment “is forfeited for failure to raise it at arraignment or at trial.” (People v. Hughes (2002) 27 Cal.4th 287, 326.) Moreover, defendant’s argument hinges on the premise that the lineup was improperly conducted and that the presence of counsel would have ameliorated its unfairness. Having rejected the contention that the lineup was suggestive, defendant’s argument regarding the arraignment logically fails as well.
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be corrected to reflect that on count one defendant was sentenced to 25 years to life imprisonment.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.