Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, No. 02NF3540, Gregg L. Prickett, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant Ernesto Angel Munoz was sentenced to prison for committing aggravated assault and attempting to commit carjacking and robbery, with attendant enhancements for inflicting great bodily injury and using a deadly weapon. He contends the court erred in giving the standard flight instruction and failing to exclude evidence pertaining to a photographic lineup. We reject these contentions and affirm the judgment.
This is appellant’s second appeal. In the first, we found he was denied the right to relieve his retained attorney before sentencing. (People v. Munoz (2006) 138 Cal.App.4th 860.) On remand, the trial court appointed appellant a new attorney but denied his request for a new trial and imposed the same six-year sentence it had originally handed down.
FACTS
At three o’clock in the morning on October 23, 2002, George Makary and Suleyka Menendez were on a date at Pearson Park in Anaheim. They were sitting in Makary’s car when appellant and two other men approached Makary in the driver’s seat. Appellant had a knife and demanded Makary’s money, but Makary said he did not have any. When appellant repeated the demand, Menendez exited the car and threw her leather jacket toward appellant’s companions, one of whom had a gun. They took the jacket, but that did not defuse the situation.
Makary also got out of the car. The men threatened to take his vehicle, and when Makary said he wasn’t going to stand for that, someone yelled out, “shank him.” Appellant then thrust his knife toward Makary, who blocked it with his arm. Makary started fighting back, but appellant stabbed him in the stomach and he fell back into the driver’s seat. Appellant then reached into the car and tried to grab the keys from the ignition, but Makary stymied this effort and appellant ran away.
Makary told police the stabber was Hispanic, 21 or 22 years old, between 5’-9” and 5’-11”, and weighed about 215 to 230 pounds. He also said he had a shaved head, large ears, a round face and a thin mustache and was wearing a black workout sweater or jacket, light blue jeans and white shoes. Menendez described the stabber as a “dark complected” Hispanic, 17 to 24 years old, about 5’-8”, and weighing 230 pounds.
Two weeks after the incident, on November 7, 2002, Makary viewed a photographic array of six men, including appellant. Makary eliminated five of the men rather quickly and then identified appellant as the man who stabbed him. At trial, Makary testified he was 100 percent sure of this identification. However, the officer who conducted the lineup said Makary was not so certain of himself at the time of the lineup. According to the officer, Makary said appellant looked very similar to the stabber, but he was not 100 percent sure it was him. Menendez also viewed the photos. After looking at them for about 30 seconds, she pointed to appellant’s photo and said, “Oh, God, that’s him.”
The next day, the police contacted Munoz at his residence, which is about 150 yards from where the stabbing occurred. Munoz consented to a search of his residence which turned up no incriminating evidence. He was then arrested and taken to the police station, where he spoke with investigators for over an hour. At the time of his arrest, he was 20 years old, 5’-9”, 260 pounds, and he had about two week’s worth of hair growth on his head.
Nine months later, on August 12, 2003, Makary and Menendez viewed a six-person lineup at the Orange County jail. Makary thought the men designated as number four and number six looked similar, but he concluded the stabber was number four, appellant. Menendez was unable to make a positive identification, although she thought the stabber “might be number one.”
The Attorney General states Menendez identified appellant at the jail lineup, but appellant was number four, not number one.
At trial, Makary identified appellant as the stabber, saying he was 100 percent sure of himself. However, Menendez said, “I don’t think it’s him.” She explained, “I remember the guy (the stabber) being dark and he’s (appellant’s), you know, not that dark.” When pressed on the issue of whether appellant was the stabber, all she could say was, “I don’t know.”
Focusing on the issue of identification, the defense presented the photograph of a man identified only as “Juan,” a young, heavyset Hispanic who lived in appellant’s neighborhood. Defense witnesses testified Juan liked to hang around in Pearson Park with two other men. Appellant, on the other hand, was not allowed to go to the park, according to his mother. She testified appellant was living with her at the time of the incident and she never noticed any bloody clothing in his laundry. Moreover, because of appellant’s size, he preferred sweatpants to jeans.
I
Over appellant’s objection, the court gave CALJIC No. 2.52, the standard instruction on flight. Specifically, the court told the jury, “The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all the other proved facts in deciding whether a defendant is guilty or not guilty. [¶] The weight to which this circumstance is entitled is a matter for you to decide.”
Relying on People v. Anjell (1979) 100 Cal.App.3d 189 and its progeny, appellant contends it was error for the court to give this instruction because identification was the only issue in the case. Anjell supports this contention, but, unfortunately for appellant, it was overruled in People v. Mason (1991) 52 Cal.3d 909. In Mason the Supreme Court held: “If there is evidence identifying the person who fled as the defendant, and if such evidence ‘is relied upon as tending to show guilt,’ then it is proper to instruct on flight. [Citation.] ‘The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury’s need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.’ [Citation.]” (Id. at p. 943, fn. omitted.)
The Mason court recognized Anjell had signaled that the flight instruction is improper whenever identity is a contested issue in the case. (People v. Mason, supra, 52 Cal.3d at pp. 942-943.) However, Mason also noted, “The court that decided [] Anjell [] has since retreated from [this] overly broad dictum [], holding that the case ‘does not stand for such a sweeping proposition.’ (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1475.) Elsewhere, Anjell’s broad dictum has been widely rejected. [Citations.]” (People v. Mason, supra, 52 Cal.3d at p. 943.) Therefore, Mason disapproved of Anjell “and its progeny to the extent such cases are inconsistent with the views expressed herein.” (Id. at p. 943, fn. 13.) Anjell’s progeny includes the very cases appellant relies on here, such as People v. Jackson (1986) 187 Cal.App.3d 499, 511, People v. Parrish (1986) 185 Cal.App.3d 942, 945-948, People v. Malgren (1983) 139 Cal.App.3d 234, 242, People v. Moringlane (1982) 127 Cal.App.3d 811, 821 and People v. Salazar (1980) 108 Cal.App.3d 992, 997-998. These lower court cases are no longer of aid to appellant in light of the Supreme Court’s more recent decision in Mason.
The present state of the law on the issue is that “a flight instruction is correctly given ‘where there is substantial evidence of flight by the defendant apart from his identification as the perpetrator, from which the jury could reasonably infer a consciousness of guilt.’ [Citation.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) That was clearly the case here, as the evidence showed appellant fled the scene after stabbing Makary and unsuccessfully attempting to take his car keys. Accordingly, the court did not err in giving CALJIC No. 2.52. (Ibid.; People v. Mason, supra, 52 Cal.3d at p. 943; People v. Jones (1991) 53 Cal.3d 1115, 1144; see also People v. Mendoza (2000) 24 Cal.4th 130, 179-181 [flight instruction does not lower the state’s burden of proof in violation of due process].)
II
Appellant also contends the court should have suppressed the identification evidence stemming from the photographic lineup because the lineup was impermissibly suggestive in violation of his due process rights. We disagree.
In the context of pretrial identification procedures, a violation of due process occurs if the “‘“procedure is ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Citations.] ‘Whether due process has been violated depends on “the totality of the circumstances” surrounding the confrontation. [Citation.]”’” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051-1052, fn. omitted.) “‘A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.’” (People v. Ochoa (1998) 19 Cal.4th 353, 413.) However, “there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.]” (People v. Brandon, supra, 32 Cal.App.4th at p. 1052.) “Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him. [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 367.)
Although the “[t]he standard of review for a claim of undue suggestiveness remains unsettled” (People v. Ochoa, supra, 19 Cal.4th at p. 413), we are convinced that even under the independent review standard, the lineup in question was not unduly suggestive. Each of the six men pictured in the lineup had a mustache and a completely or close-shaven head, and all of them, except perhaps number five, has dark eyes and could pass as Hispanic. Appellant’s face is a little more adipose than the others’, but none of the men have what could be fairly described as a thin-set look; rather, all of their faces are in the normal-to-full range. Appellant contends he is the only person in the lineup who has a “round head,” but as far as we can tell, all of the men possess this general characteristic. There is nothing about any of them that makes them stand out in a way that would suggest the witnesses were supposed to pick them out. In fact, we think it a very fair array.
In impugning the lineup evidence, appellant also argues Menendez “did not get a good look at the perpetrator” and “Makary was making a cross-racial identification of a man he had never seen before in a dark park at night. He was further distracted by the fact that he was facing three perpetrators that potentially had two weapons.” But Makary testified the incident took place in an area that was “well lit” by street lights. And during the incident, he had close contact with appellant for an extended period of time; first appellant came up to his window, then they talked outside the car, then they fought, and then appellant reached over Makary in the driver’s seat in an attempt to steal his keys. During each of these events, appellant was in plain view of Makary. And although Menendez was on the passenger side of the car, she was able to get a close-up look at appellant when he tried to snatch the keys. Two weeks later, when the incident was still fresh in her mind, she had no difficulty identifying appellant in the photo lineup.
Considering the totality of circumstances, we conclude the photo lineup was not unduly suggestive in violation of appellant’s due process rights. Therefore, the court did not error in admitting the identification evidence stemming from the lineup.
The judgment is affirmed.
WE CONCUR:
MOORE, J., IKOLA, J.