THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN MENA, Defendant and Appellant.
No. S173973
Supreme Court of California
May 31, 2012.
146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167
John P. Dwyer, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Susan Miller, Steven T. Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORRIGAN, J.--When a trial court denies a defendant‘s motion for a physical lineup and the defendant does not seek writ review of that ruling, is the defendant barred from raising the issue on postjudgment appeal? The Court of Appeal said yes, reasoning that a failure to challenge the ruling by writ undermines the purpose of the lineup right conferred under Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681 (Evans) and prevents the reviewing court from fashioning relief if it finds error. Although writ review may be the more effective means of protecting a defendant‘s right to a lineup, we decline to impose a writ requirement as a prerequisite to raising the issue on appeal. The right to appeal after judgment is statutory. We have historically been hesitant to create procedural bars to the exercise of that right.
Alternatively, the Court of Appeal assumed the issue was preserved and that the trial court erred. The Court of Appeal properly concluded that any error was harmless. Accordingly, the judgment is affirmed.
In reaching this conclusion, we clarify the source of the due process right relied on by the Evans court to require a lineup in appropriate cases. The Evans rule is based on state due process. Therefore error is reviewed under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson).
I. FACTUAL AND PROCEDURAL BACKGROUND
Around 5:00 p.m. on April 13, 2007, 15-year-old Jesus C. and 17-year-old Jonathan F. were walking to Jonathan‘s home. As they crossed the street, a red Ford travelling toward them stopped in the intersection. A white car
The occupants of both cars got out and the boys ran. Some of the men from the red car chased them. Jesus could not recall how many ran after him, but believed it might have been two. As he ran, Jesus looked back “a couple of times.” One man got within two feet and swung a knife at him. The man yelled, “Stop running or I‘m going to shank you.” Jesus kept running for half a block until he realized he was no longer being chased. He turned and saw the men running back to the cars. One of the men carried a black bat.
Jonathan testified that the men from the red car were within 12 to 14 feet of them when the boys started to run. The boys ran in different directions. Jonathan saw one man chasing Jesus. Three men chased Jonathan. One had a baseball bat and another held a knife. Jonathan was struck in the head with the baseball bat. Taken to the hospital, he received stitches for a wound above his ear.
Around 6:00 p.m., two investigating officers saw a red Ford parked about three blocks from the intersection where the boys had been approached. No evidence was presented at trial linking the car to the assault. The officers saw four Hispanic men, including defendant Joaquin Mena, sitting in the front yard of a nearby house. When the officers approached, two of the men ran inside. Defendant and Jorge Lopez remained in the yard, sitting in chairs bearing East Side gang graffiti. The officers recovered a steak knife from defendant‘s pocket.
Inside the house, the officers found Adrian Pasillas hiding under the covers of a bed. Pasillas looked like he had been in a fight, with abrasions on his head and dried blood on his face and shirt. The officers found two bats in the side yard next to a can of black spray paint. Both bats had been recently painted.
Officer Martha Gasca met with Jesus and asked whether he would view a curbside showup. Jesus was nervous and somewhat afraid, telling Gasca that his neighbor had been killed recently after testifying in court. Jesus agreed to go with her but, while being driven to the showup, covered his face with the hood of his sweatshirt and lay down in the backseat. They arrived at the location of the showup around 7:00 p.m., when it was still light.
On May 9, 2007, the police met with Jonathan and showed him four photographic lineups, one for each of the men Jesus had identified. Jonathan identified only defendant‘s photograph, stating that it “looked like” one of the men in the red car, but he was not sure.
All four of the men identified at the showup were jointly charged. Before the preliminary hearing, codefendant Lopez sought an order directing the police to conduct a physical lineup for Jesus to attend. Defendant joined in the motion. Lopez argued there was a reasonable likelihood of misidentification based on Jesus‘s brief opportunity to see his assailants; his failure to provide any details as to “clothing, [t]attoos, jewelry, [or] piercings“; and his initial statement that he might “possibly” identify the men if he saw them again. Lopez argued that the curbside showup, in which Jesus was shown four Hispanic males of similar dress, hairstyles, and facial hair, was suggestive.1 The trial court denied the motion, concluding there was no reasonable likelihood of misidentification that would be resolved by a physical lineup.
At both the preliminary hearing and trial, Jesus was unable to identify defendant or codefendants Pasillas and Lopez.2 Likewise, Jonathan made no identifications in court. However, at trial Jesus testified that the four men he had identified at the showup were involved in the chase.
Defendant contended on appeal that the trial court erroneously denied his motion for a pretrial lineup, and that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman). The Court of Appeal concluded that defendant forfeited his right to appeal the denial of his lineup motion by failing to seek a pretrial writ. It observed: “When a trial court denies a request for a pretrial lineup, and the defendant elects not to challenge the ruling by writ, the delay effectively thwarts the purposes served by the right conferred under Evans and prevents a court reviewing the claim on appeal from the conviction from fashioning any appropriate relief even if it finds error.” The Court of Appeal thus held: “Because of the uniquely ephemeral nature of the rights conferred by Evans, we conclude the requirement of timely pursuit of a lineup includes timely review of an adverse ruling by writ proceedings, and failure to pursue writ relief waives the claim of error.”
Addressing the issue on the merits, the Court of Appeal held that even assuming defendant had preserved his claim and that the trial court had abused its discretion in failing to order a lineup, the error was harmless beyond a reasonable doubt because Jesus did not identify defendant at either the preliminary hearing or trial.5
II. DISCUSSION
A. Defendant‘s Right to a Lineup
This court established the procedure for seeking a so-called Evans lineup in 1974. In Evans, supra, 11 Cal.3d 617, witnesses had identified the defendant at the crime scene after seeing only the back of his head and shoulders through the rear window of a police car where he was seated. The defendant asked the trial court to order police to conduct a pretrial lineup. The trial court was inclined to do so, but believed it lacked authority to make such an order. The defendant ultimately applied to this court for a writ of mandate.
The Evans court explained: “The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. [Citations.] We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses.” (Evans, supra, 11 Cal.3d at p. 625.)
B. Writ a Basis to Challenge Ruling Denying a Lineup Motion
Here, the Court of Appeal held that a defendant is barred from challenging the denial of a lineup motion on appeal if the defendant failed to first seek interlocutory writ review of that ruling. We reject that judicially imposed requirement. Instead, we hold that a defendant may, but is not required to, seek writ relief. A failure to do so has tactical consequences but forfeiture of appeal is not one of them.
“‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.‘” (People v. Mazurette (2001) 24 Cal.4th 789, 792; see People v. Totari (2002) 28 Cal.4th 876, 881.)
This court reviewed the denial of lineup motions on postjudgment appeal in People v. Abel (2012) 53 Cal.4th 891, 911-913, and People v. Redd (2010) 48 Cal.4th 691, 723-725, in which the lineups were requested shortly before trial, and People v. Farnam (2002) 28 Cal.4th 107, 183-184, and People v. Williams (1997) 16 Cal.4th 153, 235-236, in which lineups were sought during the penalty phase of trial. In each case we concluded that the trial court did not abuse its discretion by denying the lineup motion. However, none of these cases raised the question of whether a failure to seek writ relief bars review on appeal.
A reviewing court may exercise its jurisdiction in either a direct appeal or an extraordinary writ proceeding. (Leone v. Medical Board (2000) 22 Cal.4th 660, 668.) A writ of mandate, or mandamus, is an extraordinary writ known at common law. The writ of mandate lies generally to compel performance of a legal duty when no plain, speedy, and adequate remedy at law is available. (
At the time Evans was decided, we had long held that “pretrial discovery orders in criminal cases may, in certain instances, be reviewed by prohibition
A lineup‘s primary benefit arises before the witness encounters the defendant in court. Seeing a suspect among a group of individuals tests the accuracy of a witness‘s identification in a way different from an isolated encounter in the courtroom. “The question is whether prior to the in-court receipt of evidence of identification the accused can insist that procedures be afforded whereby the weakness of the identification evidence, if it is in fact weak, can be disclosed.” (Evans, supra, 11 Cal.3d at p. 622.) For this reason, the value of a pretrial lineup may be diminished once a direct confrontation between defendant and accuser has occurred. If a lineup is improperly denied, the defendant should be able to correct that error before the direct confrontation in court.7
The question here is not whether a defendant may seek writ review of the denial of a lineup motion. That question was answered affirmatively in Evans, supra, 11 Cal.3d 617. Because the Evans court granted relief and the lineup was ordered, there was no need to discuss a postjudgment appeal. The question here is whether a defendant who is denied a lineup motion in the trial court and then fails to seek writ review of that ruling is barred from challenging it on postjudgment appeal.
The Court of Appeal imposed such a bar. It reasoned that if a lineup was improperly denied, reversal on appeal would be an imperfect remedy. Once seen by the witness in the courtroom, the defendant could never be restored to the status quo ante. This consideration may indeed be one that might influence a reviewing court when determining whether to issue a peremptory or alternative writ.
The Legislature has expressly provided for appellate review by extraordinary writ in particular situations.10 In doing so, the Legislature has approached the interaction between writ relief and postjudgment appeal in at least three ways.
First, as to some statutes, the Legislature has made writ relief the exclusive avenue to address trial court error. “[T]hroughout the years, the Legislature has found, in a variety of settings, that the need for a speedy, final determination of certain discrete issues arising in the course of trial litigation justifies the adoption of statutory provisions permitting a trial court‘s resolution of such issues to be challenged in an appellate court only through the prompt filing of a petition for extraordinary writ (and not in a subsequent direct appeal of the final judgment rendered in the case). The decisions of the California courts regularly have upheld and applied such legislative measures.” (Powers v. City of Richmond, supra, 10 Cal.4th at p. 122 (conc. opn. of George, J.).)
Second, as to certain other statutes, the Legislature made writ review available, but also allowed for review on appeal. For example, under
Finally, only in the context of dependency proceedings under the Welfare and Institutions Code has the Legislature adopted the procedure imposed by the Court of Appeal here. As to orders terminating reunification services and setting a selection and implementation hearing, the Legislature has provided that a party must seek writ review of that order as a condition to raising the issue on appeal of a final judgment terminating parental rights. (
Nevertheless, we acknowledged there is a “legitimate policy concern” when orders concerning a child‘s permanent placement are delayed. (Id. at p. 400.) In a footnote, we suggested the Legislature address the problem of delayed appellate review: “As we construe the current statutory scheme, seeking writ review of the order terminating reunification services and setting a [Welfare and Institutions Code] section 366.26 hearing is permissible but not a condition for raising these issues on appeal. If the Legislature deems it appropriate, however, it could amend the statute to expressly provide that a party must seek writ review as a condition to later raising the issue on appeal from a final judgment, and to require that parties be explicitly advised of this requirement at the final review hearing.” (Id. at p. 400, fn. 13.)
The Legislature responded and replaced Welfare and Institutions Code former subdivision (k) with subdivision (l) (Stats. 1994, ch. 1007, § 2, p. 5959), which provides that an order setting a Welfare and Institutions Code section 366.26 hearing is not appealable at any time unless a petition for extraordinary review was filed in a timely manner and the writ petition “was summarily denied or otherwise not decided on the merits.” (
In similar fashion, the Legislature limited appellate review of orders designating the placement of the dependent child after parental rights have been terminated. Under
All of which brings us to this case. The opportunity to request a lineup is not a creature of statute, but a right conferred by this court in Evans, supra, 11 Cal.3d 617. When Evans was decided in 1974, “[t]his court ha[d] developed rules of criminal discovery in the absence of legislation.” (Hill v. Superior Court (1974) 10 Cal.3d 812, 816, fn. 3.) As a result, the Legislature has never expressly addressed the availability of appellate review when a trial court denies a lineup motion.
Later, in People v. Batts (2003) 30 Cal.4th 660, we adopted the reasoning of Memro, supra, 38 Cal.3d 658, to conclude that a defendant who challenges the denial of a motion to dismiss on double jeopardy grounds is not required to seek writ review in order to preserve the issue for appeal. (People v. Batts, at pp. 677-678.)
Memro cited various policy reasons to support its holding. We need not revisit the merits of those policy reasons or resolve whether they apply with equal force here. As this court did in Memro and People v. Batts, we decline to impose such a mandatory requirement. Here, we hold that in the absence of statutory limitation, a trial court‘s denial of a lineup motion is a prejudgment order that falls within the scope of
C. Appellate Review of Denial of a Lineup Motion
Defendant points out that the decision to forgo writ review “imposes [certain] costs.” He acknowledges that by waiting until after final judgment to seek appellate review, a defendant must demonstrate not only error in the denial of the lineup motion, but also prejudice occasioned by the error. We turn to the analysis of prejudice on appeal, first determining the applicable standard and then discussing its application generally.
Although the Evans court concluded that a defendant has a “due process” right to a lineup in appropriate circumstances (Evans, supra, 11 Cal.3d at p. 625), Evans did not specify whether the procedure it approved was grounded in federal or state due process. Relying on federal due process, defendant urges that we must apply the standard of Chapman, supra, 386 U.S. 18, 23-24, requiring demonstration by the prosecution that the error was harmless beyond a reasonable doubt. Conversely, the Attorney General argues the presumed error here resulted in a denial of state due process. Thus, the applicable standard is found in Watson, supra, 46 Cal.2d 818, requiring defendant to show it is reasonably probable he would have obtained a more favorable result absent the error. (Id. at p. 836.) The Attorney General has the stronger position.
The question in Evans was whether trial courts had the authority to compel the police to conduct a lineup. Evans concluded that “[b]ecause the People are in a position to compel a lineup and utilize what favorable evidence is derived therefrom, fairness requires that the accused be given a reciprocal right to discover and utilize contrary evidence.” (Evans, supra, 11 Cal.3d at p. 623.) The Evans court analogized to Wardius v. Oregon (1973) 412 U.S. 470 (Wardius). There, the United States Supreme Court held that an Oregon statute violated the Fourteenth Amendment‘s due process clause in requiring a defendant to provide alibi information before trial without imposing a reciprocal discovery obligation on the state. (Wardius, at pp. 474-476.) The Supreme Court stated that “[a]lthough the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, [citation], it does speak to the balance of forces between the accused and his accuser.” (Id. at p. 474.) The high court further noted that although due process did not require Oregon to adopt any pretrial discovery provisions, if it did, “discovery must be a two-way street.” (Id. at p. 475.)
Wardius, supra, 412 U.S. 470, requires only that certain discovery obligations be reciprocal. (People v. Yeoman (2003) 31 Cal.4th 93, 154.) It does not entitle a defendant to a lineup as a matter of federal constitutional right. Indeed, the high court in Wardius rejected the notion that federal due process requires a particular means of discovery. (Wardius, supra, 412 U.S. at p. 475.) Rather, as we applied Wardius in Evans, the defendant has the right to request a lineup and the court has the discretion to order it. Because defendant was empowered to seek a lineup, the reciprocity concern of Wardius is satisfied.
In concluding that courts can order a lineup in response to a defendant‘s motion, the Evans court also loosely referred to Brady v. Maryland (1963)
Under Brady, the prosecution violates due process when it withholds evidence that is favorable to the accused and is material either to guilt or to punishment. (Brady, supra, 373 U.S. at p. 87.) Evidence is “favorable” to the accused “if it helps the defense or hurts the prosecution.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132.) Evidence is “material” “if there is a reasonable probability its disclosure would have altered the trial result.” (Ibid.)
In citing Brady, supra, 373 U.S. 83, the Evans court did not mention that the suppressed evidence must be “favorable,” and did not employ the term “material” as that word is defined in Brady. The Evans analysis failed to explain how nonexistent evidence could be either favorable or material. Nevertheless, the Evans court appears to have relied on Brady only as further support for its conclusion that a defendant must be afforded an opportunity to seek a court-ordered lineup. As subsequent federal cases make clear, the Evans court‘s characterization of Brady and its scope has proven overbroad.
Brady, supra, 373 U.S. 83, does not stand for the proposition that a defendant has a federal constitutional right to a lineup or generally to compel certain kinds of investigation. In Weatherford v. Bursey (1977) 429 U.S. 545, the United States Supreme Court stated: “There is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . .” (Weatherford v. Bursey, at p. 559.) Brady merely serves “‘to restrict the prosecution‘s ability to suppress evidence rather than to provide the accused a right to criminal discovery.‘” (People v. Morrison (2004) 34 Cal.4th 698, 715, italics added.) When a motion for a lineup is made, neither the prosecution nor the police have suppressed or destroyed favorable evidence or wrongfully denied a discovery request. Indeed, at the time the lineup motion is made, there is no evidence available to disclose.
The United States Supreme Court has never held that a defendant has a constitutional right to compel a pretrial lineup. The Ninth Circuit Court of
We are mindful that for almost four decades our decision in Evans has been the controlling authority guiding a trial court‘s exercise of discretion in ruling on defense motions for pretrial lineups. Because this court has never determined that a denial of such a motion was an abuse of discretion, we have never been required to identify the basis of the due process right discussed in Evans. In light of the foregoing analysis and federal court pronouncements, we clarify that the source of the important due process right identified in Evans, supra, 11 Cal.3d 617, is the California Constitution. Therefore, error is analyzed under the test articulated in Watson, supra, 46 Cal.2d at page 836.
2. Demonstration of Prejudice
Defendant focuses on the availability of an appropriate remedy for the presumed error rather than the threshold question of whether prejudice resulted. The Court of Appeal, in concluding that a defendant must first pursue writ relief when a request for a lineup is denied, opined there is no adequate remedy on appeal: “If a defendant forgoes writ review of the lineup ruling, and instead undergoes a preliminary hearing and trial, the witness will have ordinarily viewed the defendant at the preliminary hearing and/or at trial. Even if an appellate court reversed and ordered a lineup on remand, the results of that lineup would have no evidentiary value: a positive identification would be tainted by the fact the witness saw the defendant at trial, and a negative identification would be tainted by the lengthy passage of time during which fading memories and changing appearances would operate.” Defendant
Defendant puts the cart before the horse. Before he can demand a remedy, he must first establish that he was prejudiced by the trial court‘s error. As noted, under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. (Watson, supra, 46 Cal.2d at p. 836.) Prejudice under Watson “must necessarily be based upon reasonable probabilities rather than upon mere possibilities.” (Id. at p. 837.) The dilemma for a defendant in this circumstance is that the trial court erred in denying the opportunity for a lineup. The outcome of that lineup is unknown because it was never conducted. “[I]t has long been recognized that ‘[i]n the case of in-court identifications not preceded by a lineup . . . , the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury . . . .’ [Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) This court‘s decision in Evans, supra, 11 Cal.3d 617, “did not overrule the principle that an identification made in front of the jury carries with it the circumstances under which it was made, which, in turn, can be argued to and weighed by the jurors.” (People v. Breckenridge (1975) 52 Cal.App.3d 913, 936.)
There may be some circumstances in which a defendant would be able to establish prejudice. However, many attempts to do so will founder on the shoals of speculation. The mere assertion that the witness might possibly have failed to make a positive identification cannot demonstrate prejudice under Watson. A contrary conclusion confers a windfall on a defendant who forgoes writ relief and proceeds to trial. In that circumstance, the defendant could argue prejudice on appeal simply by asserting that the witness might have failed to make the identification. However, if the defendant had been successful on the writ and obtained a lineup, the defendant may have been identified.
Establishing prejudice is even more problematic when, as here, the witness fails to identify the defendant at trial or is uncertain. Again, any suggestion as to the outcome of an erroneously denied lineup would rest on speculation. It is possible the witness would have identified the defendant at the lineup. But even if the witness failed to do so or was uncertain, the defendant would have gained little or nothing of evidentiary value in light of the witness‘s failure to make an identification before the jury.
If the lineup motion is made and denied, tactical factors remain in deciding whether to seek a writ. As illustrated here, one of those factors is the requirement of establishing prejudice on appeal. A showing of prejudice is, obviously, not required in a writ proceeding. Indeed, the purpose of seeking review is to foreclose any irremediable detriment that might ensue if the writ relief is not granted. However, seeking and securing writ relief may be a Pyrrhic victory if a witness does identify the defendant in the lineup sought. On the other hand, not seeking writ relief allows the defense to raise the denial of the lineup as an appellate issue after judgment. But to succeed, that appellate claim will require the defendant to establish error and show prejudice.
D. Any Error in Denying Defendant‘s Motion for a Lineup Was Harmless
We turn now to the merits of defendant‘s claim. The Court of Appeal assumed the trial court abused its discretion in denying the lineup motion. It applied the more rigorous Chapman standard (Chapman, supra, 386 U.S. 18) and concluded that any error was harmless beyond a reasonable doubt, stating: “Mena asserts the erroneous ruling deprived him of evidence that Jesus would not have identified him in a lineup conducted in June of 2007 (near the time of Mena‘s Evans motion), and we should reverse and instruct the jury on remand to that effect. However, Jesus testified at trial that he did not recognize Mena as one of his attackers, and he had not been able to identify Mena as one of his attackers in June of 2007 when he saw Mena at the preliminary hearing.” Thus, the jury convicted defendant even though it heard testimony substantially identical to the evidence of which defendant claimed he was deprived when not afforded a lineup.
Defendant argues it is wrong to consider Jesus‘s failure to identify him in court as a weakness in the prosecution‘s case or to conclude that the lineup would have added nothing of evidentiary value. He urges that the prosecutor turned Jesus‘s failure to identify into affirmative evidence of guilt by insinuating that Jesus was too frightened to make an identification. Defendant contends the lineup evidence would have defeated this argument. Defendant‘s assertion fails.
At trial, the prosecutor questioned Jesus about his identifications at the curbside showup. Jesus said he had not wanted to look at the detained men “[b]ecause that would have made me--because I didn‘t want to.” The prosecutor then asked Jesus about the consequences of being a “snitch.” Jesus testified that a “snitch” could be killed or hurt, and that his neighborhood friend had been shot two years earlier. Jesus confirmed his own worry that he would be killed or hurt. On cross-examination, Jesus stated that when he arrived at the showup, he was concerned about being recognized.
The prosecutor asked Jesus: “When you made those identifications back in April were you telling the truth to the best of your ability?” Jesus answered, “Yes.” Jesus confirmed the men he pointed out at the curbside showup were the men who had been involved in the chase. On cross-examination, he did acknowledge testifying at the preliminary hearing that he was “90 percent” certain of his identification at the curbside showup.
When asked at trial whether he recognized anyone who was involved in the attack, Jesus said, “No.” The prosecutor asked, “Are you saying these guys were not involved?” Jesus replied, “I‘m not sure.” Jesus also testified that he could not identify anyone at the preliminary hearing, and had also been unsure at that proceeding. Jesus told the prosecutor that he did not want to testify at trial, and was doing so only because he was subpoenaed. The following colloquy ensued:
“Q. Did you want to be here back in June [at the preliminary hearing]?
“A. No.
“Q. How come?
“Q. You want to leave everything as it is?
“A. Yes.
“Q. Are you worried about something happening to you?
“A. Yes.”
In closing argument, the prosecutor told the jury that, in evaluating a witness‘s credibility, it must consider possible reasons why a witness said or did not say something. The prosecutor continued: “It is a lot different sitting in that chair up there just a few feet away from some people that did some very violent things and being asked to look at those people and identify them as guilty parties as people who participated [than] it is to sit in the back of a patrol car with armed officers in the front seat where those people can‘t see you.” The prosecutor argued, “I would submit to you [Jesus] was scared stiff when he was in here when I asked him to look around the courtroom. . . . He could barely look over to the left side of the courtroom. His eyes flashed over there for a second and he said, ‘No, I do not recognize anybody.’ He is scared stiff. He doesn‘t live in this courtroom. . . . He‘s got to go back and walk on those streets. That is something that you can consider in deciding whether or not he was giving truthful, accurate testimony or not. [¶] It doesn‘t change the fact that he didn‘t ID them. What I‘m saying is a failure to identify in court doesn‘t mean that these defendant[s] are not guilty.”
Defendant asserts that the prosecution‘s argument would have been undermined had the court ordered a lineup. According to defendant, the prosecutor acknowledged that Jesus “was not fearful” when he viewed the suspects from the rear of the patrol car because he was protected and could not be seen. Defendant maintains that during a police-supervised lineup, Jesus would have viewed defendant and others from behind one-way glass. If Jesus had failed to identify him in a lineup shortly after the crimes, the prosecutor could not have credibly argued that Jesus did not make an in-court identification because he was afraid. Defendant urges, “the results of the lineup would have provided crucial evidence that Jesus C. had misidentified Mena at the curbside showup, and that his failure to identify Mena at the preliminary hearing and trial was not the result of intimidation.” These arguments miss the mark.
First, the prosecutor did not argue that Jesus “was not fearful” during the curbside showup. Indeed, there was clear evidence to the contrary. The pro-
More importantly, however, defendant‘s argument assumes that Jesus would not have identified him at a lineup. Defendant attempts to establish prejudice by arguing the failure to order a lineup effectively excluded “evidence that Jesus C. would not have been able to identify Mena in a formal lineup.” Defendant‘s argument illustrates the dilemma for reviewing courts on appeal from a judgment. It rests on sheer speculation. It simply cannot be determined what Jesus might have said or done at a lineup. He might have identified defendant, or affirmatively said defendant was not his assailant, or, as he did at both the preliminary hearing and trial, said he could not identify anyone because he was uncertain.
The best outcome from defendant‘s perspective would have been a firm statement from Jesus that his attacker was not in the lineup. In light of his repeated in-court testimony, which was substantially less definitive, such a result appears unlikely. Yet, even if Jesus had expressly said his assailant was not in the lineup, the prosecutor could still have argued Jesus acted out of fear. The incident occurred on April 13, 2007. The lineup motion was argued on May 29, 2007, a little more than a week before the June 6 preliminary hearing. At that hearing, Jesus was a reluctant witness. Had a lineup been conducted where Jesus made no identification, the prosecutor could have reasonably argued at trial that Jesus was acting with the same reluctance he displayed at the preliminary hearing. Neither the presence of police nor the protection of one-way glass could have ensured the secrecy of any identification Jesus made. The result of his lineup statement would have been revealed during discovery and his appearance and testimony would make his identity known to those inclined to retaliate. Defendant fails to establish on this particular record that, but for the trial court‘s failure to order the lineup, he would have obtained a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant also argues the harmless error standard cannot be satisfied because the balance of the evidence against him was not strong. This argument also fails. It is true that some harmless error conclusions are reached by relying on the overall strength of the evidence of guilt. Such an approach is not the thrust of our analysis here. We are concluding that any assumed error was harmless because, even if defendant had been given a lineup, no foreseeable outcome from that procedure would have further assisted him.
The Court of Appeal erred in holding that defendant forfeited his right to appeal the denial of his lineup motion by failing to pursue writ relief. However, it correctly concluded that the trial court‘s error, if any, was harmless. For this reason, we affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Liu, J., concurred.