Opinion
B153301.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. DARNELL K. MATHEWS et al., Defendants and Appellants.
Barbara Springer Perry, under appointment by the Court of Appeal, for Defendant and Appellant Darnell K. Mathews. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Arnell Lovert Johnson. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Darnell K. Mathews and Arnell Lovert Johnson appeal from judgments entered against them following a jury trial. They were convicted of murder, attempted second degree robbery, and second degree commercial burglary. Johnson was sentenced to state prison for 91 years to life. Mathews was sentenced to 26 years to life.
Mathews contends: (1) the trial court improperly denied his motion to suppress evidence; (2) his federal and state rights to a speedy trial were violated by the unwarranted dismissal of the original information; (3) he was denied due process when the trial court refused to suppress certain identification testimony; (4) he was denied due process when his request for a live lineup was refused; and (5) the prosecutor committed misconduct by knowingly presenting false testimony to the jury.
Johnson contends: (1) the trial court abused its discretion in denying his motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (2) he joins in issues raised by Mathews that may accrue to his benefit.
FACTS AND PROCEDURAL HISTORY
Mathews, Johnson, and three codefendants were charged by information with murder (Pen. Code, § 187, subd. (a)) in the course of attempted robbery and burglary (§ 190.2, subd. (a)(17)) (count 1), attempted second degree robbery (§§ 211, 664) (count 2), and second degree commercial burglary (§ 459) (count 3). It was alleged as to all counts that in the commission and attempted commission of the above offenses, a principal was armed with a firearm (§ 12022, subd. (a)(1)). The information alleged that Johnson had suffered three prior serious or violent felony convictions (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subd. (a)).
The codefendants, Kevin Peebles, Larry Richardson, and Jose Zavala, are not parties to this appeal. The petition for writ of habeas corpus, No. B168607, filed July 17, 2003 by Jose Zavala, and ordered to be considered concurrently with this appeal, is denied by separate order.
All statutory references are to the Penal Code, unless otherwise indicated.
A first information filed against the defendants was dismissed without prejudice on the grounds that one of the major prosecution witnesses, Maria Carrera, had left the country. It was later disclosed that Carrera had in fact been in custody at the time.
At the first trial, a mistrial was declared as to all defendants on September 18, 2000. The jury was unable to reach verdicts with respect to Mathews and Johnson at the second trial, and a second mistrial was declared as to them on December 11, 2000. Prior to commencement of a third trial, Mathewss motion for appointment of new counsel was denied. After trial began, Mathews unsuccessfully renewed his motion. At the conclusion of the third trial, the jury found appellants guilty on all counts on July 30, 2001. The allegations that a principal was armed was found to be true as to each count, and the allegations that the murder was committed during attempted robbery and burglary were found to be true. The jury found not true the allegation that Johnson and Mathews personally used a firearm within the meaning of sections 12022.5, subdivision(a)(1) and 12022.53, subdivision (b). The jury found not true the allegation that Johnson and Mathews murdered Soliman Babai while engaged in robbery or burglary within the meaning of section 190.2, subdivision (a)(17). It was found true that Johnson had suffered the alleged prior convictions.
These appeals followed.
The evidence, viewed in the light most favorable to the judgment, shows the following. A string of robberies of jewelry stores in the Los Angeles jewelry district were committed in the spring of 1999. On June 9, 1999, Andres Tellez and Maria Carrera, who were illegally selling bus transfers near the corner of Broadway and 8th Street, saw two automobiles cross Broadway and stop by a public telephone booth in the late afternoon. A group of men, including appellants, emerged. Zavala wore a tan cap with a logo.
Tellez identified Peebles, Mathews, Richardson, and Johnson as members of the group. He thought that Zavala might have been with them, but was not certain. Carrera identified Peebles and Zavala. Prior to trial, Carrera identified Peebles, Zavala, and Mathews in photographic lineups. At the first trial, Carrera identified Peebles and Richardson.
Peebles walked toward the corner, looking in all directions, while the others waited. He signaled the others to join him, and the group crossed the street diagonally and headed toward Classic Wholesale Jewelers. Carrera recognized the men from prior jewelry store robberies in the area, and ran to a nearby beauty salon operated by Amira Cabeza to telephone police. While she sought help, Tellez saw the men enter the store and heard a gunshot. The men ran out of the store and got into two cars, which headed left on 8th Street, toward Figueroa. Cabeza identified Peebles as the man she saw standing on a corner, looking around, just before the Classic Wholesale Jewelers homicide.
At trial, eyewitnesses inside Classic Wholesale Jewelers at the time of the attempted robbery recalled the following. Johnson, Mathews, and Peebles entered the shop in the late afternoon. Soliman Babai, his wife Sara, her brother Ray Shemouel, and two customers were in the store. The customers left, and Johnson pulled a gun from his windbreaker. Johnson held the gun to Mr. Babais head and said, "You, motherfucker, dont move." Mathews jumped over the counter and went to the safe. Almost immediately, Johnson shot Mr. Babai in the head and the three codefendants ran out of the store. The three codefendants were in the store for only three or four minutes. Mr. Babai died of the gunshot wound.
Shemouel had previously identified Zavala as the gunman from a photographic lineup.
Ms. Babai identified Zavala as the man who jumped over the counter at the first trial.
Los Angeles Police Officer Guadalupe Rubalcava arrived at the scene, and was given a description of the robbers and the getaway vehicles. Los Angeles Police Sergeant Albert Kilgore had previously been informed at roll call and by crime bulletins that there had been a rash of robberies of jewelry stores at 8th and Broadway committed by four to seven African-American males driving two cars, one of which was rented. On June 9, 1999, Sergeant Kilgore heard a radio broadcast regarding a robbery in progress at 8th and Broadway, describing the suspects as four Black males, driving a brown car. A subsequent broadcast described the vehicle as gray.
As Sergeant Kilgore headed towards 8th Street, he saw a black Grand Am Pontiac containing four male African-Americans wearing dark clothes, followed by a green Mercury, containing two African-Americans. Sergeant Kilgore made a U-turn and followed the cars. When the cars split up, Sergeant Kilgore followed the Grand Am, which appeared to be a rental car, and radioed for assistance. Other officers activated their lights and stopped the black car. Richardson was the driver, Peebles was the front seat passenger, and Johnson and Mathews were in the back seat. The occupants were ordered out of the car at gunpoint, one at a time. They were handcuffed and placed on the sidewalk. Sergeant Kilgore testified that the suspects were detained at that point.
Los Angeles Police Officer Jeff Tucker testified that he arrived at the scene as Peebles exited the vehicle during the preliminary stop. Officer Tucker had crime reports, rap sheets and a photo identification of Peebles from the case file. Officer Tucker had been instructed to arrest Peebles on sight based on prior crime reports taken from the jewelry store robberies. However, he did not have an arrest warrant for Peebles. He was also informed that Peebles acted with others and that a rental car was usually used in the robberies. The officers conducted a field showup with Shemouel, who was in shock and unable to focus or identify the suspects. Subsequently, another broadcast described a possibly blue or gray Grand Am. The officers searched the Grand Am but discovered no weapons or contraband.
The defendants were handcuffed for approximately 20 to 25 minutes before Officer Tucker ordered the defendants to be taken to the station for arrest.
The black car was later identified by Carrera as one of the getaway vehicles. The officers found a tan baseball cap with a logo on the front, similar to the cap Zavala was seen wearing just before the murder.
Carrera testified that the cap found in the black car was similar to the one Zavala was wearing, but was not the same cap.
Zavalas fingerprints were found on the roof and door of the black car. He was apprehended two months later. Zavala is apparently the half-brother of Frank Moore, a suspect in prior jewelry store robberies in the area. The parties stipulated that on December 15, 1997, Zavala and Johnson were seen together at an Enterprise Rent-A-Car in Los Angeles.
Their birth certificates were admitted into evidence, showing that their mother had the same first and middle names, Yolanda Renee.
The prosecution presented evidence that the defendants had participated in prior jewelry store robberies in the area. Guadalajara Jewelry was robbed on April 20, 1999. Farshad Yaghoobi, the proprietor of Guadalajara Jewelry, located near Broadway and 8th Street, was in his shop when three men entered on April 20, 1999. Two men stuffed their shirts with Rolex watches and gold chains while a third individual held a gun to the owners head. Yaghoobi identified Zavala, Richardson, and Moore as the three robbers. The same day, Tellez and Carrera saw a group of African-American men, including Richardson, Zavala, Peebles, Mathews, and Johnson, walk toward a jewelry store near 8th Street and Broadway. When the men emerged, Richardson was holding a gun and carrying jewelry under his shirt. As they ran past, Peebles knocked Carrera to the ground. Cabeza saw Richardson, Peebles, and Johnson run past her shop pursued by an elderly Iranian man. Cabeza said that she could not be sure about Zavala, although she had identified him in the first trial and in a photographic lineup. The defendants ran into an alley and got into a waiting car.
There was some confusion with regard to Yaghoobis identifications because he had apparently also been the victim of an attempted robbery in which Mathews participated.
Carrera identified Zavala, but Tellez said that he could not remember him very well.
Nine days later, Carrera saw all five defendants near 8th Street and Broadway. Zavala and two other men entered Sarah Jewelry at 748 Broadway. A proprietor, Soraya Agachi, recalled that Zavala held a gun to the head of one of the owners while his companions jumped behind the counter and took jewelry worth $120,000. Two latent fingerprints lifted from the counter matched Zavalas, and the robbery was captured on videotape and played for the jury. Two weeks earlier, Zavala and Johnson had come into the shop to "case" it. On June 9, 1999, prior to the Classic Wholesale Jewelers homicide, Zavala and Moore were seen casing the Oro King jewelry store near Broadway and 8th Street. A videotape of their visit was played for the jury.
A forensic scientist testified that none of the shoes worn by appellants and codefendants was the source of possible shoe prints on the glass counter top at Mr. Babais jewelry store. The parties stipulated that Los Angeles Police Department experts compared latent prints lifted from the crime scene with prints of appellants and their codefendants, and there were no matches. A forensic psychologist testified on the subject of eyewitness identification. The expert stressed the difficulties that arise in cross-racial identifications and in delayed identifications.
DISCUSSION
I. Whether the trial court erred in denying appellants motion to suppress evidence
When an appellate court reviews a ruling on a suppression motion, it must defer to the trial courts factual findings if they are supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) The appellate court exercises its independent judgment in determining whether the search or seizure was reasonable. (Ibid.)
A detention is a seizure of an individual, for which the constitutional standard is of a lesser degree than that applicable to an arrest. (People v. Soun (1995) 34 Cal.App.4th 1499, 1515.) That is, a detention can be undertaken if there is an articulable suspicion that a person has committed or is about to commit a crime. (Ibid.) However, probable cause for arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. (Ibid.) Accordingly, the courts generally determine whether the seizure was a detention, arrest, or both a detention and a subsequent arrest. (Ibid.) In general, detentions are seizures which are strictly limited in duration, scope and purpose, during which the police may not carry out a full search of the person or his automobile. (Ibid.)
When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause. (In re Carlos M. (1990) 220 Cal.App.3d 372, 384.) The court must determine whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. Thus, each detention is assessed on a case-by-case basis and the length of time of the detention as well as the necessity for handcuffs depends on the situation. (Id. at p. 385.)
In People v. Soun, supra, 34 Cal.App.4th at pages 1517-1519, the Sixth District found that the action of the police in removing the defendant from his car at gunpoint, forcing him to lie on the ground, handcuffing him, placing him in a patrol car, transporting him a distance of three blocks and holding him in the parking lot for up to 30 minutes without being told the reason for the stop, did not elevate the detention to the status of a de facto arrest. There, the detaining officer had received a letter that described the suspects of a murder as six Vietnamese or male Orientals driving a car variously described as blue or maroon, who were armed with semi-automatic rifles. The court reasoned that in effecting the detention, the officers were authorized to take steps necessary to protect their personal safety and concluded that the officers used the least intrusive means reasonably available under the circumstances.
Finally, the court determined that the detention was permissible under the circumstances known to the detaining officers. In order to justify a detention, the officer must include specific and articulable facts causing him to suspect that some activity relating to crime has taken place and the person he intends to stop is involved in that activity. (Id. at p. 1520.) The officer following the suspects noted that they repeatedly looked back at the officer, made a full circle, and passed their point of origin. In that case, the court noted that witnesses excited perceptions might have resulted in various descriptions of the car implicated, but several reports were consistent about certain aspects of the car. Moreover, at the time he detained the suspects, the officer had identified six Asian males, observed their self-conscious reactions to his presence, and noted that they drove in an evasive manner and that the car was similar to that described in the letter. (Id. at pp. 1521-1524.) At the end of the detention period, additional information was given regarding physical appearance and stature which confirmed the officers suspicions.
At trial, Mathews joined Johnsons motion to suppress, seeking suppression of photographs of Mathews and Johnson obtained as a result of their arrest, the items of clothing they were wearing, the statements Johnson made at the time his shoes were retrieved, and the identification evidence that resulted from their arrest. On appeal, appellants contend that they were arrested at the moment the car was stopped, but that the officers lacked probable cause to arrest the occupants of the vehicle.
We find that the stop was not an arrest, but a detention. Even if it was an arrest, probable cause existed. As in People v. Soun, supra, 34 Cal.App.4th at page 1517, here, appellants were stopped, ordered out of the cars, and handcuffed for 20 to 25 minutes. As discussed, infra, the officers were able to articulate specific reasons for the stop, including information received through crime reports, bulletins, broadcasts, and photo identification.
Appellants citation to Henry v. U.S. (1959) 361 U.S. 98, for the proposition that the arrest took place at the moment the car was stopped, does not avail them. In that case, the prosecution conceded that an arrest occurred at the time of the stop.
We are not convinced by appellants argument that the detention was unconstitutional because the officers were unable to articulate specific facts causing them to suspect criminal activity by the persons stopped. Indeed, even were the stop an arrest, the record supports the conclusion that the officers had probable cause to arrest appellants. (People v. Soun, supra, 34 Cal.App.4th at p. 1515.) That is, the facts known to the officers would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. (Ibid.) The record shows that Sergeant Kilgore had been given descriptions of four to seven Black males who had committed a string of jewelry store robberies, driving two cars, one of which was rented. He received a radio broadcast alerting him to a robbery in progress and identifying four Black males in a brown car. He subsequently noticed four Black males in a rented black Grand Am, followed by two Black males in a green Mercury, and made a U-turn to follow them. Officer Tucker testified that he had received crime reports, crime sheets and a photo identification of Peebles. He had been instructed to arrest Peebles on sight in connection with previous jewelry store robberies, and had been informed that Peebles acted with others. Moreover, the officers testified that Peebles was always in the car, and had never entered or exited it. Officer Tucker had also been informed that a rental car had been involved in the robberies. We are simply not persuaded by appellants argument that race was the determining factor in the detention. It is difficult to determine what more evidence would be necessary to justify a detention, or indeed, an arrest, under the circumstances.
Furthermore, we are not convinced that the detention violated appellants constitutional rights by virtue of its intolerable intensity and scope, as argued by appellants. Appellants urge that the information developed at the arrest scene did not provide a basis for appellants continued detention because the eyewitness could not identify the appellants, nor did the search of the vehicle reveal any weapons or jewelry. As previously discussed, however, Officer Tucker had been instructed to arrest Peebles in connection with jewelry store robberies. He had been informed that a rental car had been involved in the robberies, and that Peebles acted with other persons. We conclude that appellants were detained in a manner reasonably necessary to ensure the safety of the officers, given the violent nature of armed robbery. (People v. Soun, supra, 34 Cal.App.4th at p. 1517.) Accordingly, the trial court did not err in denying the motion to suppress.
II. Whether appellants right to a speedy trial was violated by the dismissal of the original information
A. The right to a speedy trial
Appellants contend their speedy trial rights were violated by the dismissal of the original information. We disagree.
The right to a speedy trial is guaranteed under both the state and federal Constitutions. (See Jones v. Superior Court (1970) 3 Cal.3d 734, 738.) It is aimed at preventing oppressive pretrial incarceration, minimizing the accuseds anxiety and concern, and limiting possible impairment of the defense. (Serna v. Superior Court (1985) 40 Cal.3d 239, 251-252.)
Under the state Constitution, the filing of a felony complaint is sufficient to trigger speedy trial protection. (People v. Martinez (2000) 22 Cal.4th 750, 765.) "No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute." (Id. at p. 766.) Where there is no statutory violation, the defendant must show actual prejudice. (See People v. Anderson (2001) 25 Cal.4th 543, 605.)
B. Whether the dismissal pursuant to section 1382 was proper
Appellants first urge that the trial court violated section 1382 when it granted the Peoples motion to dismiss the original information. Under section 1382, subdivision (a), the action shall be dismissed if the information is not filed within 15 days after the accused has been held to answer for a public offense, or if the defendant charged with the felony is not brought to trial within 60 days of the defendants arraignment on an indictment or information. (People v. Martinez, supra, 22 Cal.4th at p. 766.) When a defendant seeks dismissal based on delay after the filing of the complaint and before indictment or holding to answer on felony charges, the trial court must weigh the prejudicial effect of the delay on the defendant against any justification for the delay. (Id. at p. 767.) Appellants claim that their statutory speedy trial rights were violated by the unwarranted dismissal of the original information, and that they need not show actual prejudice.
We disagree and first note that Mathews failed to object at trial to the case being dismissed pursuant to section 1382, and therefore he has waived that argument on appeal. (People v. Avena (1996) 13 Cal.4th 394, 426.)
Johnson and Peebles objected to the dismissal.
In any event, we find that good cause for delay existed under section 1382. Good cause is demonstrated on a case-by-case basis and can be shown if the moving party has exercised due diligence in securing the attendance of the witness; the expected testimony of the witness is material; the testimony must not relate merely to motive; the testimony can be obtained within a reasonable time; and the facts to which the witness would testify cannot otherwise be proven. (Owens v. Superior Court (1980) 28 Cal.3d 250, 251, superseded by statute on other grounds as stated in People v. Perez (1989) 207 Cal.App.3d 431, 436.)
The record shows that jury selection began in the previous case filed against appellants and their codefendants in December 1999. Before the jury had been impaneled, the prosecution stated that witness Carrera was out of the country and unavailable. The trial court denied the defense motion to dismiss with prejudice, and dismissed without prejudice under section 1382. The information was immediately refiled, and the defendants were arraigned in the present case. In February 2000, appellants filed a motion to dismiss the current information on the basis that the dismissal of the original information was predicated on false and misleading representations by the prosecutors. The motion requested an evidentiary hearing to compel testimony from Carrera and any members of law enforcement who had communicated with her regarding her availability to testify.
Appellants urge that the prosecutor had not shown due diligence because Richardson discovered by a newspaper article that Cabeza was in jail, and therefore the prosecutor should have been aware that Carrera could have been in jail also. However, the record shows that the prosecutor and his investigator attempted to secure Carrera as a witness weeks prior to trial, but were given misleading information by Tellez, Carreras common-law husband. In opposition to appellants motion to dismiss the information, the prosecutor declared that in December 1999, he been informed by Detective Russell Long that Carrera was in Mexico due to a family illness, but that she would return within a week or so. Long had received this information from Tellez. Subsequently, in January 2000, Tellez told Detective Long that he did not know when Carrera would return. Moreover, the prosecutor declared that prior to the start of trial, he ran rap sheets on the prosecution witnesses as requested by the defense, and did not discover Carreras incarceration. The prosecutor shared the results of those rap sheets with the defense, who did not question them at that time. Longs declaration also averred that Tellez had told him in December 1999 that Carrera was in Mexico due to a family illness and would be back shortly. In January 2000, Tellez informed Long that he did not know when Carrera would return from Mexico. In February, 2000, upon receiving information from Johnsons attorney, Long confirmed that Carrera was incarcerated under the name of Laura Ana Santos.
Accordingly, we conclude that the prosecutor had exercised due diligence in attempting to secure Carrera for trial based on the information gleaned from the rap sheets and Carreras common-law husband.
Next, we find that the expected testimony of Carrera was material. The record shows that the prosecutor informed the court that Carrera was a primary witness. Carreras testimony was crucial to the prosecution of this matter, because she testified that she recognized the defendants from prior jewelry store robberies. Moreover, she was able to identify Peebles and Zavala, while Tellez was not certain about Zavalas identity. Zavala was not otherwise identified by the witnesses as one of the robbers who entered the store. Moreover, once Carrera was located, the information was refiled and the trial proceeded as quickly thereafter as possible.
See footnote 5, ante.
While appellants also claim that the trial court violated their constitutional rights when it failed to hold an evidentiary hearing under Brady v. Maryland (1963) 373 U.S. 83 (Brady), we find that the trial court did not abuse its discretion in relying on the detailed declarations of the prosecutor and Long as to their reasons for believing that Carrera was out of the country and unavailable to testify. (People v. Ayala (2000) 23 Cal.4th 225, 253; People v. Hayes (1999) 21 Cal.4th 1211, 1256.) Nor are we persuaded that the prosecutors failure to discover Carreras incarceration and conviction or failure to identify the defendants at the arrest site constituted a violation of Brady, under which a prosecutor must disclose material, exculpatory evidence. Since the defense had time to use the conviction as impeachment evidence at trial, there was no Brady violation. (People v. Jenkins (2000) 22 Cal.4th 900, 951.) We are not persuaded by appellants argument that evidence could have surfaced at an evidentiary hearing that a law enforcement officer was complicit in Tellezs "deception" or by the argument that evidence could have been reached undermining Tellezs credibility.
C. Whether federal constitutional speedy trial rights were violated
Federal speedy trial claims are weighed by balancing four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendants assertion of his right to a speedy trial, and (4) whether the defendant has suffered prejudice due to the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530.)
The length of the delay is considered on a case-by-case basis. (Barker v. Wingo, supra, 407 U.S. at pp. 530-531.) In People v. Anderson (2001) 25 Cal.4th 543, 604, the court found that where the defendant himself created and consented to a three-year delay between the California Supreme Courts decision and the commencement of his penalty retrial, the delay was not considered lengthy. Here, we find that the complained of delay of eight months was not inordinate. The record shows that the prosecution requested that the original trial go forward when appellants sought and obtained a mistrial. Moreover, the prosecutor refiled the case 15 days after the dismissal, on January 19, 2000, undermining appellants claim of unreasonable delay. Furthermore, when the prosecutor suggested utilizing section 1387.2, which would have resulted in a trial within 60 days, appellants rejected this proposal. Also, continuances were instigated by the defendants when Peebles obtained new counsel, Johnson received discovery material from standby counsel, and Mathewss attorney was engaged in another trial. We conclude that a delay of eight months was not lengthy considering the complexity of this case involving multiple defendants, charges and witnesses.
As we have already discussed, we also find that the reason for the delay was well founded, based on information received by Carreras common-law husband that she was in Mexico and unavailable as a witness. As previously mentioned, neither the prosecution nor the investigator had any indication that Carrera was in jail.
Next, as previously discussed, Mathews failed to object to the dismissal of the case under section 1382. Although Johnson objected to the dismissal, he refused to proceed under section 1387.2, which would have resulted in the trial commencing within a shorter time period. The record shows that neither appellant objected to the dismissal on speedy trial grounds.
Section 1387.2 provides: "Upon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387, the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading and a new time period pursuant to Section 859b or 1382 shall commence."
Finally, appellants have not shown that they suffered prejudice. They have not shown that their defense was in any way impaired, or that they lost witnesses or evidence through the delay. Indeed, the prosecutor declared that by dismissing the initial filing of the case, the prosecution risked suffering adverse rulings on motions previously decided in the prosecutions favor, such as a motion to suppress brought by appellants which had been previously litigated and denied. Moreover, as Mathews concedes, witnesses memories tend to fade over time, which could only work to his advantage. Although appellants urge that the delay resulted in an observation by witness Ray Shemouel of Mathews in his jail garb, as we discuss, infra, that observation was not necessarily prejudicial. Eventually, the trial court granted the appellants motion for mistrial on September 18, 2000.
All parties were ready for trial except Richardson, whose counsel was engaged in the another trial. Richardsons counsel stated that she would not be able to begin trial until September, and the trial court appointed new counsel to represent Richardson. In June 2000, the trial court found good cause to continue the trial due to a defendant proceeding in propria persona. Trial began in September 2000. In September 2000, Nasser Maghereftech testified that he had participated in a live lineup. Counsel for Zavala objected that the defense had never received any information concerning any live lineups in the case. The prosecution also was unaware of any live lineups. The prosecution subsequently learned that witnesses Agachi, Carrera, and Cabeza had also attended live lineups which the defense did not know about. The trial court initially denied a defense mistrial motion. After more testimony, the defense again moved for mistrial. The trial court at first considered allowing the defense to recall the witnesses in question rather than granting a mistrial. Counsel for Zavala stated that he would have discussed the material during opening statement, had he known about it. The trial court stated that a mistrial might be in order, but that the defense might prefer not to have one.
When the matter resumed, Mathews moved for mistrial, joined by appellant, Zavala, and Johnson. Richardson declined to join the motion. The trial court declared a mistrial as to all defendants. The court found that there was no prosecutorial misconduct. The trial court subsequently denied Richardsons request for dismissal on double jeopardy grounds. The instant trial commenced in November 2000.
We conclude that the federal and state constitutional speedy trial rights of appellants were not violated.
III. Whether Mathews was denied due process when the trial court refused to suppress identification testimony
In determining whether the admission of identification evidence violates the defendants right to due process of law, the trial court must consider whether: (1) the identification procedure was unduly suggestive and unnecessary; and, if so, (2) the identification itself is nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated that the time of the identification, and the lapse of time between the offense and the identification. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (Ibid.)
It is unsettled whether suggestiveness is a question of fact subject to deferential review on appeal, or a question of law, subject to review de novo. (People v. Nguyen (1994) 23 Cal.App.4th 32, 38.) "Factual determinations by the trial court will be upheld on appeal if supported by substantial evidence." (Ibid.)
According to the declaration of counsel for Johnson, attached to the motion to suppress, on March 15, 2000, Johnson was brought into court wearing jail clothes and chains. After the matter had been assigned to a trial court, Shemouel, who had spoken to counsel on a previous occasion, approached counsel while he was waiting for the elevator. Shemouel stated to counsel that it was important that identification be accurate, otherwise an innocent man could be sent to prison. On April 19, 2000, counsel received discovery from the prosecution indicating that Shemouel told the investigating officer that Johnson was involved in the crime, and that he recognized Johnson as one of the robbers while he was talking to his counsel at court. Shemouel said he had told Johnsons counsel that he was able to identify Johnson as one of the robbery suspects.
Appellants contend that because Shemouel had failed to identify both Johnson and Mathews until the time of the first trial, Shemouels identification of Johnson at the courthouse was unduly suggestive. Appellants also urge that the prosecution was responsible for the unjustified delay caused by the improper dismissal of the original information resulting in the courtroom glimpse of Johnson.
In re Gary G. (1981) 115 Cal.App.3d 629, 637, is instructive. In that case, a witness saw the defendant being led into the courtroom, wearing handcuffs. The court noted that the confrontation was not designed to give the witness a prehearing glance at the suspect, but that witnesses had been excluded from the courtroom; the suspect was wearing street clothes; and the witness recognized the defendant prior to noticing that he wore handcuffs. (See also In re Carlos M., supra, 220 Cal.App.3d at p. 386 [the mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification].)
Here, the glimpse of Johnson by Shemouel was not designed to be an identification procedure. Nor is there evidence that Shemouel identified Johnson only because he saw him in the courthouse wearing jail garb. While we agree with appellants that defendants have the right to be tried in civilian clothing (People v. Taylor (1982) 31 Cal.3d 488, 494), the fact that Shemouel saw Johnson, along with the other defendants in jail house garb during a pretrial hearing is not unduly suggestive, especially in light of the fact that Shemouel specifically identified Johnson, but did not tell the detective that he recognized Richardson, Mathews, or Peebles, who were also present in the courtroom with Johnson. Moreover, there was no pending evidence lineup motion or motion to exclude witnesses from the courtroom.
Even if the glimpse of Johnson in jail garb was unduly suggestive, the totality of the circumstances convinces us that Shemouels identification of Johnson and Mathews was reliable. First, during the crime, after appellants and the other defendants entered the jewelry store, two other customers left, giving Shemouel the time and opportunity to focus on appellants. While Mathews urges that the inability of Shemouel to identify him until nine months after the murder seems suspicious, and therefore the identification could only have been based on his presence in jail garb with Johnson, we agree with the trial court that it is not unusual for witnesses to be shaken at the time of the crime, but certain during trial. Also, Shemouel did not report that he recognized Mathews at the courthouse in jail garb, but only Johnson. At trial, Shemouel testified that he saw Johnson point the gun at Soliman Babai, and Mathews jump the counter. He testified that he recognized both Mathewss and Johnsons faces and physical statures, and that the shooters coat hung over his pants.
We conclude that the trial court did not err in denying the motion to suppress.
IV. Whether Mathews was denied due process when his request for a live lineup was refused
Where an accused timely requests a live lineup, it will be granted if 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. (Evans v. Superior Court (1974) 11 Cal.3d 617, 625.) In exercising its discretion in determining whether to grant the request, the court must consider the benefits to be derived by the accused, the reasonableness of his request, and also the burden to be imposed on the prosecution, the police, the court and the witnesses. (Ibid.) Typically, the motion should be made as soon after arrest or arraignment as possible, and motions made shortly before trial should be denied, unless good cause is clearly demonstrated. (Id. at p. 626.)
Here, Mathews filed a motion for lineup on May 5, 2000, when the trial date was set for May 16, 2000. On May 9, 2000, the trial court found that the motion was not made on a timely basis because the trial was continued to June 21, 2000, slightly more than a month away, and 11 months after the crime had been committed.
We conclude that Mathews did not show the good cause exception necessary to avoid the timeliness issue. His argument that he only learned within the prior month that witnesses received relocation money, therefore giving them an incentive to identify Mathews by simple process of elimination, does not constitute good cause. Mathewss argument that the witnesses would therefore be prompted to lie about their ability to identify him is sheer speculation. Contrary to Mathewss assertion on appeal, the trial court did find that the motion was untimely.
Moreover, as the trial court noted, even if the witnesses identified Mathews by process of elimination, Mathewss counsel would have had the opportunity to attack the identification in court as to whether or not it was consistent with the witnesses prior testimony and to argue that they were only able to identify Mathews through process of elimination. Thus, the benefit of a lineup to Mathews would be minimal.
We find that the trial court did not abuse its discretion in denying Mathewss motion for lineup. The burden on the prosecution, the court, the police and the witnesses in providing a live lineup a month before trial clearly outweighed the benefit to Mathews.
Nor are we convinced by Mathewss argument that since the prosecutor was responsible for the delay in the proceedings resulting from the "unwarranted" dismissal of the original information, the prosecutor should be barred from asserting untimeliness. First, as Mathews concedes, his lineup motion was made three months after his arraignment on the current information, and one month after his counsel realized that the witnesses were receiving relocation fees. In any event, the prosecutors dismissal of the original information actually gave Mathews more time to file a lineup motion. Nor could the prosecutors failure to reveal Carreras presence at a lineup have caused Mathews any delay in filing the motion.
Finally, Mathews states that after the first trial was dismissed due to the defense discovery that Carrera and other witnesses had participated in a lineup in September 1999 and had been unable to identify certain defendants, Mathews moved to suppress identification testimony based on the denial of his May 5, 2000 lineup motion. Mathews argues that the trial courts grant of a mistrial and denial of his suppression motion violated his due process rights. We disagree. As previously discussed, the denial of Mathewss lineup motion was based on timeliness, and Mathews did not show good cause to avoid the timeliness bar. Further, as the trial court stated, the grant of a mistrial was a sufficient remedy. Thus, we are not persuaded that the matter should be reversed, or that on reversal, the eyewitness identification testimony implicating Mathews would have to be suppressed.
V. Whether the prosecutor committed misconduct
A prosecutor commits misconduct when he or she uses deceptive or reprehensible methods to persuade a jury. (People v. Rowland (1992) 4 Cal.4th 238, 274.) A prosecutor may not present evidence that he or she knows to be false and must correct any falsity of which he or she is aware. (People v. Seaton (2001) 26 Cal.4th 598, 647.)
Mathews contends that the prosecutor committed misconduct when she did not correct misstatements made by Ms. Babai during the third trial although she had corrected Ms. Babais statements during the second trial. Mathews argues that at the third trial, the prosecutor elicited testimony that Ms. Babai had identified Mathews on several previous occasions, while failing to inform the jury of Ms. Babais recantation. Mathews also urges that the prosecutor deliberately elicited false testimony from Ms. Babai to the effect that she had recanted her identification of Zavala and had instead identified Mathews. We do not agree that the prosecutor committed misconduct.
The record shows that at the first trial, during opening statements, the prosecutor informed the jury that Johnson, Zavala and Peebles entered the jewelry store while Mathews stood outside as a lookout. She stated that Carrera and Tellez would identify Mathews, while Ms. Babai and Shemouel could not identify him because he was not in the store. During the first trial, Ms. Babai testified that Mathews and Zavala entered the store, and that Peebles shot Mr. Babai. On cross-examination, she stated that she made a mistake, and that she recognized Johnson, but not Mathews. At the second trial, during opening statements, the prosecutor stated that Ms. Babai identified Mathews at a hearing, but later corrected herself and identified Johnson instead. Ms. Babai testified that Johnson was the shooter, Mathews and Peebles had entered the store, but that Zavala did not enter the store. She also testified that Mathews had jumped over the counter. In her closing argument, the prosecutor stated that Ms. Babai had identified Zavala, but later identified Mathews as entering the store. The prosecutor stated that Ms. Babai was clearly mixed up, and "theres nothing I can really say to excuse that any further." The prosecutor went on to state that Shemouel identified Zavala as a gunman.
There is nothing in the record to show that the prosecutor purposely elicited false testimony from Ms. Babai during the third trial. Rather, the record shows that during her opening statement for the third trial, the prosecutor mentioned that the witnesses were human and were subjected to an incredibly emotional event. She stated that the witnesses were ordered to get down on the floor when the suspects rushed into the store, cutting off their line of vision. The prosecutor also stated that the witnesses did not have perfect memory at every stage, and that they were in such a state of shock that Shemouels eyes could not focus when he was brought to identify the suspects at the field showup. She stated that Ms. Babai and Shemouel had previously testified that Johnson came into the store with Peebles and Mathews.
The record also shows that the prosecutor withdrew her objection to Mathewss counsels motion to read portions of Ms. Babais testimony from the second trial in which she stated she had made a mistake when she identified Mathews as being involved in the crime. Her withdrawal of the objection undermines Mathewss argument that the prosecutor intended to elicit false testimony. Indeed, during her closing argument, the prosecutor told the jury that "At the end of the day, you may not know for [certain], and you dont need to know with certainty, which three men went into the business where Soliman Babai was killed. You may feel that for certain it was Johnson who shot, Mathews who was in there, who went over the counter, and Peebles, if you care about it very much, who was there for backup, but you dont need to know that. [¶] All you need to know to convict anyone of the murder that happened on June 9th is these men were all acting in concert." The prosecutor also addressed Ms. Babais confusion about her testimony regarding the complexions of the men and who did what. She stated that the witnesses were not perfect, they were rattled, they experienced a lot of trauma, and that they were inadequate in differentiating between Black men. The prosecutor stated that Ms. Babai acknowledged flip-flopping about the complexions of the defendants.
In any event, it is not reasonably probable that a different result would have occurred had the alleged misconduct not taken place. (People v. Navarette (2003) 30 Cal.4th 458, 512.) As noted, Ms. Babais prior testimony was read to the jury; Mathews was identified by other witnesses; and Mathews was in the car with the other defendants when it was pulled over.
VI. Whether the trial court abused its discretion in denying Johnsons Marsden motion
Under Marsden, a defendant may discharge appointed counsel and substitute another attorney by successfully demonstrating inadequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) Where there is a credibility question between the defendant and counsel at the hearing, the court is entitled to accept counsels explanation. (Id. at p. 1245.) "If a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citations.]" (Id. at p. 1246.) Once the trial court decides not to remove counsel, the defendant may proceed with existing counsel or represent himself. (People v. Michaels (2002) 28 Cal.4th 486, 522-523.) It is not improper to require the defendant to make this choice, as long as the court did not err in refusing to remove counsel. (Ibid.) Denials of Marsden motions are reviewed under the abuse of discretion standard. (People v. Jones, at p. 1245.)
We conclude that the trial court did not abuse its discretion in denying Johnsons Marsden motion. Johnson was initially represented by Dean Gits, until Gits declared a conflict because of the possibility that he could be called as a material witness based on Shemouels identification of Johnson in the courtroom. The record shows that Johnson advised the court that he believed there was a conflict with his new counsel, Edgar Borne III, on the basis that Borne had a relationship with an informant, James White. Borne explained that another criminal client asked White, a disbarred attorney, to call Borne on another matter. Although White had been named as an informant in the present case, counsel for all parties asserted that he would not be called. Johnson stated that if the court would not dismiss Borne, he would like to proceed in propria persona.
At the next hearing, on June 15, 2000, the trial court indicated that Mathewss attorney and the prosecutor did not believe that there was a conflict involved with Borne based on his previous relationship with White. Johnson then indicated that he wished to proceed in propria persona and that he would need two months to prepare. All counsel stated they were prepared to go to trial. The trial court then asked Johnson if he understood his in propria persona rights. Johnson stated that he had had no communication with Borne since Borne had been appointed.
At that point, the court stated that it would make a Marsden inquiry. Johnson complained that Borne had not done anything on the case or contacted his former attorney, Gits. Johnson was also upset that Borne had not gone to Gitss office to retrieve the case files. Borne responded that he had spoken briefly with Gits, whose wife/paralegal delivered all files to him; he had opened his phone lines for collect calls from Johnson and received at least one; that Johnson refused to cooperate with Borne; and that Borne had familiarized himself with the case. Borne also stated that if he needed to talk to Gits, he would contact him, but in the meantime he could communicate with co-counsel. The trial court found that there was no legal cause to relieve Borne, and the reason for his inability to proceed was Johnsons refusal to work with him.
On June 19, 2000, Johnson again indicated that he believed there was a conflict due to the involvement of White, that he was uncomfortable with Borne, and that he wanted another attorney. The trial court then stated that Johnsons failure to cooperate and discomfort with Borne was not legal cause for replacing Borne. Johnson again asserted that he wanted to represent himself, and after questioning him, the trial court ruled that Johnson gave up his right to counsel. The trial court explained to Johnson that trial would be set for August 3, there would be no continuances, and that Johnson could not ask for different counsel at a later date. Three days later, the trial court appointed Borne as standby counsel in the event that Johnson lost his in propria persona status.
On appeal, Johnson states that it was clear that he only went in propria persona because he was denied substitute counsel. In support of that argument, he contends that he had not complained about his previous attorney; he asserted his right to self-representation only after the trial court had ruled that it would not relieve Borne; and he sought to have Borne discharged for incompetence.
People v. Michaels, supra, 28 Cal.4th at pages 522-523 is instructive. There, the defendant sought to remove his counsel on the basis that his counsel had failed to follow through on defense options, counsel was unwilling to fight for his rights, and his relationship with counsel had deteriorated. The appellate court upheld the trial courts denial of the defendants Marsden motion. The court found that there was nothing in the record to show that counsel was incompetent or would not provide adequate representation if he received the defendants cooperation. While the court found that the defendant and his counsel were in conflict, it did not reach the level of an irreconcilable conflict that would result in ineffective representation. (Id. at p. 523.)
Similarly, here, there is nothing in the record to show that Borne was inadequate or that there was an irreconcilable conflict between Borne and Johnson. Borne requested, and Gitss wife/paralegal brought the case file to him. Johnsons argument that Borne should instead have gone to his former counsels office to get the case file is simply not a valid complaint. While Borne admitted that he had not devoted a lot of time to the case because of Johnsons lack of cooperation, he stated that he brushed the surface of the case. Borne also stated that if he didnt talk to Gits he would talk to co-counsel about the case, he had spoken to Johnson at least once, and his telephone line was open to collect calls from Johnson. Borne never stated that he was not willing to take the case; that he would not be ready for trial; that he did not want to talk to Johnson; or that he did not want to cooperate with Johnson. Indeed, Borne was ultimately appointed as standby counsel for Johnson. We conclude that the trial court did not abuse its discretion in denying Johnsons Marsden motion.
Citing People v. Hill (1983) 148 Cal.App.3d 744, 755, Johnson urges that "if a defendant only elects self-representation after and because of an erroneous denial of a Marsden motion, the error is reversible per se." First, Marsden does not enunciate a per se reversible error test. Rather, "the decision makes clear that the court reversed the conviction in [Marsden] because the court concluded that it could not find beyond a reasonable doubt that the error did not contribute to the defendants conviction." (People v. Chavez (1980) 26 Cal.3d 334, 349.) Second, People v. Hill only states that where the defendant had mentioned several times he was proceeding with his motion under Faretta v. California (1975) 422 U.S. 806 simply because of the courts disposition of his substitution request, "[t]his circumstance further militates in favor of a finding of prejudice on appeal." (People v. Hill, supra, 148 Cal.App.3d at p. 755.) Accordingly, even if the trial court abused its discretion in denying the Marsden motion, we look to whether the error contributed to the defendants conviction beyond a reasonable doubt. (People v. Chavez, supra, 26 Cal.3d at p. 349.)
Here, Johnson does not convince us that he was prejudiced by his self-representation. According to the record, Johnson informed the trial court that he had previously successfully represented himself in a three strikes case, winning an acquittal. In the present case, despite eyewitness testimony that Johnson was the shooter, the jury found not true the allegation that Johnson had personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). The jury also found not true the allegation that Johnson had murdered Babai while engaged in robbery or burglary within the meaning of section 190.2, subdivision (a)(17).
On appeal, Johnson urges that the case was close because the jury deliberated for about eight hours and 40 minutes over a two-day period before reaching a verdict, and the previous jury deadlocked. We disagree. This was a complex case with many witnesses and exhibits, with the potential of severe penalties for the defendants. "[T]he length of the deliberations demonstrates nothing more than that the jury was conscientious in its performance of high civic duty." (People v. Cooper (1991) 53 Cal.3d 771, 837 [deliberations for 27 hours over seven court days did not give rise to inference that the issue of guilt was close where a capital case was involved, the trial lasted over three months, and dozens of witnesses testified, some as to complex scientific testing].) Nor are we persuaded by Johnsons argument that he suffered prejudice because the case against him was not overwhelming. We shall not reweigh the evidence. Construing the evidence in a manner favorable to the verdict as we must, the record shows that Tellez identified Johnson as emerging from a car with the other defendants at the site of the robbery. Eyewitnesses inside Classic Wholesale Jewelers identified Johnson as one of the men who entered the store, and he was also identified as the shooter. Johnson was apprehended in the Grand Am in the company of Peebles, wanted for previous jewelry store robberies. Johnson and his codefendants were identified at trial as participants in prior jewelry store robberies.
We conclude that even if the trial court abused its discretion in denying the Marsden motion, it is beyond a reasonable doubt that the error did not contribute to Johnsons conviction.
DISPOSITION
The judgments are affirmed.
We concur: BOREN, P.J. and DOI TODD, J.