Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA349516 Drew E. Edwards, Judge.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Respondent.
JOHNSON, J.
SUMMARY
Defendant and appellant DeJohn N. Smith appeals from a judgment entered following his conviction for second degree robbery, with a firearm use finding. (Pen. Code, §§ 211, 12022.53, subd. (b).) (Further unspecified statutory references are to the Penal Code.) Sentenced to 14 years in state prison, Smith claims there was trial error and that the evidence was insufficient to support his conviction. We affirm.
PROCEDURAL BACKGROUND
An amended information charged Smith with one count of second degree robbery (§ 211) with the use of a handgun (§ 12022.53, subd. (b)). The offense was a serious felony within the meaning of sections 667.5, subdivision (c) and 1192.7, subdivision (c). A prior conviction was also alleged (§ 667.5, subd. (b)).
Smith pleaded not guilty, and filed two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118, each of which was denied.
Smith proceeded in pro. per. for a time. During that period he filed a second motion to dismiss pursuant to section 995 arguing the trial court had erred at the preliminary hearing by denying his request for a lineup. The motion was denied. Smith also moved to dismiss the weapons allegation pursuant to section 995. He argued evidence presented at the preliminary hearing was insufficient to support that allegation because the initial information contained an allegation under section 12022, subdivision (b)(1) (rather than the section 12022.53, subdivision (b) allegation in the amended information), and the prosecution had never elicited a description of the weapon from the victim. That motion was also denied.
Following the presentation of evidence at trial, Smith made an unsuccessful motion to dismiss, pursuant to section 1118.1, arguing the evidence was insufficient to support a guilty verdict.
The jury convicted Smith on both the robbery charge and the weapon enhancement. Prior to sentencing, Smith moved for a new trial on the ground of insufficient evidence. The motion was denied.
Smith admitted his prior conviction. He was sentenced to 14 years in state prison: a midterm of three years on the robbery count, plus 10 years pursuant to section 12022.53, subdivision (b) and one year pursuant to section 667.5, subdivision (b). Smith was ordered to pay various fines, fees and restitution, and awarded 510 custody credits (443 actual days + 67 conduct credits).
FACTUAL BACKGROUND
At about 8:30 p.m. on May 6, 2008, Rodolfo Montiel was just about to close his store, “Beeper Doctor, ” when three armed men came in and ordered him to the floor behind the sales counter. One of the men pointed what looked like a semiautomatic gun at Montiel’s face while the other two proceeded to take cash and merchandise from the store. Montiel was afraid at first, but regained some composure. He believed the gun pointed at his face looked “very much real.”
The man pointing a gun at Montiel grabbed a plastic bin from behind the counter which contained customers’ phones needing repair. Montiel asked the man not to take those phones (because Montiel would have to replace them), and offered him new cell phones instead. The man dropped the bin and took the new phones. The three men left the store making off with approximately $300-$500 in cash and about $3,000 worth of merchandise. At trial, Montiel testified the man who pointed a gun at him “seem[ed] like” Smith, but he was not 100% sure it was him.
Montiel’s store was analyzed for fingerprints. Three of Smith’s fingerprints were found on the plastic bin containing customers’ phones needing repair. At trial, Montiel testified that no one but himself and possibly one friend had access to or any reason to touch that bin prior to the robbery.
In October 2008, Montiel was shown three photographic six-pack lineups. According to the detective who administered the lineups, Montiel promptly chose Smith’s photo from the first six-pack, saying Smith “looks like the leader.” The detective said Montiel’s identification was unequivocal. Montiel did not identify either of the other two robbers from the other photographic six-packs. The detective testified that Montiel reviewed and signed the standard admonition before viewing any of the photos. At trial, however, Montiel testified he did not read or sign the admonition until after choosing Smith’s photo, and said he was “50 percent sure, ” and that the photo he chose was the “closest approximation” to his memory of what the perpetrator looked like.
At the preliminary hearing, Montiel identified Smith as one of the three robbers, but stated he was “not 100 percent sure.” At trial, Montiel identified Smith again as a participant in the robbery but repeated that he was “not 100 percent sure” (but about 50 percent sure) Smith was one of the robbers.
DISCUSSION
Smith maintains he was denied due process and a fair trial when the judge denied his request for a live lineup prior to the preliminary hearing, and that his motion for new trial based on insufficient evidence was wrongly denied. Neither contention has merit.
1. No lineup was required
Prior to the preliminary hearing in February 2009, Smith moved for a pretrial live lineup. For reasons not disclosed in the record, the motion was denied. Smith renewed his motion before trial and the trial court denied the motion again for unspecified reasons. Smith argues the denial of a lineup deprived him of due process. We disagree.
The record does not contain the motion, a reporter’s transcript or a ruling on the initial motion, and the Superior Court docket does not reflect that the motion was made before February 2009.
The Attorney General maintains Smith’s claim of error may not be raised on appeal. We assume for the purposes of this decision that Smith may seek reversal of a judgment on appeal on the ground the trial court erred in denying a motion for a pretrial lineup, pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). The issue of whether a challenge to a denial of a pretrial lineup must be raised by way of pretrial writ or may be raised on appeal is pending before the Supreme Court. (See People v. Mena (2009) 173 Cal.App.4th 1446–1452 (Mena), review granted August 26, 2009, S173973.) In Mena, the appellate court held, that, “[b]ecause of the uniquely ephemeral nature of the rights conferred by Evans, ... 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.” Precedent established long before Mena held that failure to seek writ review does not constitute forfeiture of a postjudgment direct appeal challenging a pretrial ruling. A defendant may seek writ review in the context of a pretrial discovery violation but his failure to do so does not preclude appellate review following final judgment. (See People v. Batts (2003) 30 Cal.4th 660, 678; People v. Memro (1985) 38 Cal.3d 658, 675–676.)
“[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when 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, supra, 11 Cal.3d at p. 625.) The court has broad discretion to determine whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup. (Ibid.)
Smith argues that the trial court's denial of his motion for a pretrial lineup was prejudicial because although Montiel, the sole eyewitness to the robbery, “positively identified [Smith] at the preliminary hearing, he admitted that he was not completely certain that the picture in the photograph lineup he had picked out was the right one.” In addition, Montiel testified at trial that he was only 50 percent sure it was Smith whom he selected from the photographic lineup.
As the trial court aptly observed, this is not a case in which eyewitness identification was a material issue or fundamental fairness required a pretrial lineup. Evans defined the issue: “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. The question is thus not one of fairness in receiving evidence but rather one of fairness to an accused on pretrial discovery.” (Evans, supra, 11 Cal.3d at p. 622, italics omitted.) The court went on to state, “As in all discovery matters an accused is entitled to the knowledge to be gained from a lineup sufficiently in advance of trial to prepare therefor.” (Id. at p. 626.)
Here, the pretrial photographic lineups provided Smith with that knowledge. In addition, the photographs used in the lineups were available at trial. Thus, “defense counsel had adequate opportunity to demonstrate [to the jury] the identification method’s potential for error.” (People v. Rist (1976) 16 Cal.3d 211, 217, superseded by statute on a different point; see also People v. Sullivan (2007) 151 Cal.App.4th 524, 560–561 [no reasonable likelihood of casting doubt on eyewitness identification where defendant was given full information surrounding photographic identifications so as to allow him to challenge identifications at trial].) In this case, to the extent there were weaknesses in the identification evidence, Smith was aware of them well in advance of trial. He had an opportunity to challenge what he viewed as Montiel's tentative identification and to fully reveal any perceived weaknesses in the eyewitness's identification to the jury.
The right to a lineup arises “only when 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, supra, 11 Cal.3d at p. 625.) Here, there was no “reasonable likelihood of a mistaken identification which a lineup would tend to resolve.” An eyewitness initially identified Smith from a lineup, albeit a photo lineup. Smith has never argued any due process violations arose from the photographic lineup. Smith does not allege that lineup was conducted in an improper manner, was overly suggestive or that it tainted the later in-court identification of him in any respect. Nor does Smith argue that anything about the photographic lineup created a likelihood of mistaken identification which a live lineup would likely resolve.
Finally and most importantly, no lineup was required under Evans because eyewitness identification, while an issue, was not a material issue. The fingerprint evidence inculpating Smith was much more central to this case than Montiel’s eyewitness identification. In light of this corroborating evidence, any issue of a mistaken eyewitness identification took a backseat. (See People v. Rivera (1981) 127 Cal.App.3d 136, 149 [court was entitled to find no reasonable likelihood of mistaken identification even in light of suggestive showup evidence where that evidence was corroborated by additional identifications]; People v. Sullivan, supra, 151 Cal.App.4th at p. 560 [combination of positive identifications (from, e.g., photo arrays and bank security cameras) and corroborating evidence (e.g., piece of robber’s clothing and demand note) defeated Evans motion].)
Applying Evans here, we find no issue of mistaken identification that a lineup would have tended to resolve. Not only had Montiel identified Smith's photograph from a photographic lineup prior to his in-court identification, but Smith also was inextricably tied to the crime by the fingerprint evidence. Particularly in light of the other corroborating evidence tying Smith to the robbery, we are not convinced due process mandated a live lineup. The trial court did not abuse its discretion in implicitly concluding no due process rights were infringed by the absence of a live lineup.
2. Substantial evidence supports the conviction
Smith contends the evidence is insufficient to support his conviction for second degree robbery, arguing there is was an inconclusive identification by the sole eyewitness and the prosecution relied on questionable fingerprint evidence. Under the applicable substantial evidence standard of review, we examine the record in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Evidence in a criminal case is sufficient to support a conviction if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318–319; People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
The question on appeal is not whether the evidence as judged by the reviewing court establishes guilt beyond a reasonable doubt, but whether substantial evidence was presented at trial to justify the factfinder’s conclusion. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction. (See Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) This includes the testimony of a single witness on the issue of identification. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Even if the witness is not positive about the identification, the testimony may still support the verdict. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740 [“identification of the defendant need not be positive”]; People v. Wiest (1962) 205 Cal.App.2d 43, 45 [“[t]estimony that a defendant ‘resembles’ the robber [citation] or ‘looks like the same man’ [citation] has been held sufficient”].) “The question of identification of the perpetrator of a crime is one for determination by the trier of fact and unless the evidence of identity is so weak as to constitute no evidence at all this court cannot set aside the decision of the trial court.” (People v. Kittrelle (1951) 102 Cal.App.2d 149, 154.)
Here, it cannot be said that Montiel’s identification of Smith was so weak as to constitute “no evidence at all.” Montiel unequivocally selected Smith from a photographic lineup, and twice reconfirmed that identification at the preliminary hearing and at trial. Although Montiel testified at trial he was only about “50 percent sure” Smith was one of the robbers, there was evidence Montiel had previously shown no hesitation identifying Smith from the photographic six-pack, which suggests he may have been intimidated at trial. Any weakness in Montiel's identification was a matter for the jury to assess, and his testimony is sufficient to support the verdict.
There was also fingerprint evidence linking Smith to the robbery. “Fingerprint evidence is... ‘the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.’ [Citation.]” (People v. Bailes (1982) 129 Cal.App.3d 265, 282.) Smith paints the fingerprint evidence as “questionable” because the analyst who testified at trial was inexperienced. But the analyst was a seasoned crime scene investigator with extensive fingerprint training. Although she was “fairly new” to testifying about fingerprint comparison—having done so only five times before this trial—she was not inexperienced in the field. In any event, this was a matter for the jury to assess. The analyst’s testimony was sufficient to support the verdict even if she was new to the subject matter.
Similarly, Smith’s attack on the analyst’s testimony based on the number of comparison points she observed between his prints and the latent prints does not undermine the sufficiency of the evidence. The analyst explained the method she employed to conduct the fingerprint comparison and repeatedly stated that the method was not based simply on “the numbers.” Again, the attempted line of attack was an issue for the jury to consider and does not render the evidence insufficient. Any weaknesses in the evidence to which Smith points were simply matters for the jury’s consideration. And even in light of those alleged weaknesses, the combined, mutually corroborating force of the evidence is sufficient to support the verdict.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.