PEOPLE v. MENA

Respondent’s Answer Brief on the Merits

Cal.January 19, 2010

Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. JOAQUIN MENA, Defendant-Appellant. Case No. 8173973 Fourth Appellate District, Division One, Case No. D052091 San Diego County Superior Court, Case No. CD205930 The Honorable Bernard E. Revak, Judge RESPONDENT’S BRIEF ON THE MERITS SUPREME COURT FILED JAN 19 2019 Frederick K. Ohlrich Clerk Deputy EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General ERIC A. SWENSON Deputy Attorney General State Bar No. 190813 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2216 Fax: (619) 645-2191 Email: Eric.Swenson@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Introduction... .ecccscceccssssseeessessessecsecssesscsasesscsecceecssessesusssesssessssacsreseseeees 1 Statement of the Facts and the Case ..0........cccccsesssesccescssesssssssccssessesevensrease 1 ALQUMENtoo. cecccsessessssessesscssessseessesssssstsascsssessuessesassarsaeeatsessstesassucssesseaceressees 5 I, Because he did not seek pretrial writ relief, appellant’s Claims are forfeited 0.0.0... cececsesscccssessssessscesscssecsseveaseeeeneees 5 A. The due process rightto a pretrial lineup in Evans is guaranteed only by the California COMStItUTION. 0... cee eesceesesssesssccnesseeceseesecsssssssessserares 6 B. Evans has not been superseded by Proposition LS eeeaeeeeeeesecseceeeeseeseesseaecsesesscaesrsensesssssereesneas 12 C. Becausethe value of a pretrial lineup disappears following a live confrontation between the defendant and a complaining witness, he must pursue a writ of mandate to preservehis claim ........ 16 D. Evenif this Court determinesthat appellant has preserved his claims, the trial court did not abuseits discretion when it denied his motion for a pretrial Lineup 00... cece cecesecseseeeesessessesessevere 28 II. If this Court finds the trial court abusedits discretion, the error must be evaluated under the Watson standard Of TOVIOW voeecccccccecceeeeceesseceececsesecstaceeseeseseeesestsecceseceutersnsreetens 29 COMCIUSION 0.0... .ceeecccsesececesscceccecessccecesessececsestecsessaueesesrsescsesacuccesevertacensess 32 TABLE OF AUTHORITIES Page CASES Appeal ofMcGuire (Ast Cir, 1978) 571 F.2d 675 oo .ececceccceccescecsecseeeeeeececeeececsneeeseresneenseeseeetaees 9 Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] oo.eeeetees 10, 11 Cash vy. Superior Court (1959) 53 Cal.2d 72 occ eccecscesccssesseeeeeesseceneesaeenescseecseesatesasesenesaseeneeeneeas 17 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705)...esetrereeiees 5,29 City ofLos Angeles v. Superior Court (2002) 29 Cal4th Looessecseeseceeceneesseeseeesseceaeeseeeseseneceseceeseseneesaees 10, 11 Code v. Montgomery (1 1th Cir, 1984) 725 F.2d 1316 ooo. eeceeccseseesecececeeeeeeeeeceseeaesaeeeeecseeeeaerates 9 Commonwealth y, Evans (1975) 460 Pa. 313, 333 A.2d 743 oo. eeccccsscsssccensceteeessessneetsesssersseseeseeensers 9 Commonwealth v,. Sexton (1979) 485 Pa. 17, 400 A.2d 1289 0.eesseeeeteeeneeneenenecntententeaceespassim Cornell v. Superior Court (1959) 52 Cal.2d 99 oo... cecceecceeescsccsnsecsscsseeeseensssessseseseseeesnersessessesensesenees 17 Cummings v. State (1969) 7 Md.App. 687, 256 A.2d 894... cccecsseteesecsscteesecsecseesesstesnernensens 9 Dunlap v. State (1973) 212 Kan. 822, 512 P.2d 484 0... eecsccesscsesscessseesecsssssenesenseesatenseens 9 Evans v, Superior Court (1974) 11 Cal.3d 617 occ cceceeccessessecsessseceseeseeeseceseesseceseesscsesaceseseesenaspassim il Funk v. Superior Court (1959) 52 Cal.2d 423 oiececceecsecseesessesecseeseseesecaesseesecseesessssecessreansareates 17 Gomez v. Superior Court (1958) 50 Cal.2d 640 ocecccscseesesscessssssecsescsessscsesscsssssrsussevseasaenaeseees 17 Griffith v. Kentucky (1987) 479 U.S. 314 [107 S.Ct. 708, 93 L.Ed.2d 649]...20, 21, 27 Harris v. Municipal Court (1930) 209 Cal. 55 ooo ceccescesesssssescssenecsecsecassesscsecssssessucsssseveseseseeatersareas 17 Harris v. Superior Court (1977) 19 Cal.3d 786 oe ceccccsssssescsscsecsecscsscsesssescsesssssscssssavsssuvacesasaeeaeess 16 Haskins v. United States (10th Cir, 1970) 433 F.2d 836 wooo ceccecccccecesesceecessscssssesesecsesccssecsessessensavs 8 ' Holmes v. State (1973) 59 Wis.2d 488, 208 N.W.2d 815 ..cccccccccsscsesscscsscescscsesssvsceevsececesers 9 In re Richard W. (1979) 91 Cal.App.3d 960 ccccceccsecensesceccssscessesssseccssecsusescccssseessees 27 Izazaga v. Superior Court (1991) 54 Cal.3d 356 oie cccssesesesscsescescscnscsssssvscsecscssssessvesseeeveracersanueaees 15 Laury v. State (Del. 1969) 260 A.2d 907 wcccccsssscscssscssssssescscscsessssssvssssesvevevssavecatsasavacscsees 9 Maine v. Superior Court (1968) 68 Cal.2d 375 oo cccessscsscsesesessesseevscsessvscsecsvscsssauessataceevatarenss 16, 17 Manson v. Brathwaite (1977) 432 U.S. 98 [97 S.Ct. 2243, 53 L.Ed.2d 140]...25, 26, 27, 30 Moore vy. Illinois . (1977) 434 U.S. 220 [98 S.Ct. 458, 54 L.Ed.2d 424] voces8, 22 Neil v. Biggers (1972) 409 U.S. 188 [93 S.Ct. 375, 34 L.Ed.2d 401] veces25, 26 Pennsylvania v. Ritchie (1987) 480 ULS. 39.eeceseeesescsessseetscscecsustecsuecseesssssvensuassaverstasstsesasees 10 People v. Baines (1981) 30 Cal.3d 143 occcccsesssescesescscscscssscstscscesssvsvsesssvevsvatavasaesesnsaes 19 ll People v. Boyer (2006) 38 Cal.4th 412 ..cccccccccccsccscscsssssscssssssssssssessssssssssssssssssesessesssessnssseeeeee 26 People v. Brinkley (1965) 33 IIL.2d 403, 211 N.E.2d 730.0... eceeeeeeseseree eee ceseeeceseerseeeeeseeenees 9 People v. Carpenter (1997) 15 Cal.4th 312occccecccecneeeeeceseteereeceesersueseessssesssesenseseaeensens 12 People v. Carter (2005) 36 Cal.4th 1114eeeescnecseecneeeeeeseeseeeenseeseseessrsesesssssnseesesesaes 25 People v. Craig (1978) 86 Cal.App.3d 905 oo... cecceceeecncerseeseeseeesseseeeeeescesenssesseeeseaseesees 27 People v. Cunningham (2001) 25 Cal.4th 926 ooo. ceecccsececcecceeeceneeteteeeseeeeaeeneessessesieesseseresseessaeseee 25 People v. Danis (1973) 31 Cal.App.3d 782 .....cccccecccesceecceceeseeeeseeecnereaesesesesansesseesensneesenenees 12 People v. Farnam (2002) 28 Cal4th 107 ooo ececceeseeceeecereeneneteeeeeesseeetsecsesssssassesenenees 16, 20 People v. Hansel (1992) 1 Cal.4th 1211 oo.cececcsecneceteeneeereecseeeeseeceeeseensseseessieneseesesses 16 People v. Kennedy (2005) 36 Cal4th 595 oocececceeseneeneeeneeseereseseseneesesseseenssesneeesessssseeaes 26 People v. Lawrence (1971) 4 Cal.3d 273 ooo cecccccccsseececeecescestecsecseeeseecesesneseeessseseeeniesssesseseeneneeees 25 People v. McPeters (1992) 2 Cal.4th 1148 oocecececcneeseeenneeneteneereteesseseeeeaeseneseseees 12, 13 People v. Memro (1985) 38 Cal.3d 658 occ ccceccecenceeeeeeeeeseeceeeteenesersesearersatenses 17, 18, 19, 20 People v. Morrison (2004) 34 Cal.4th 698 oo.eeccceceseseeeeeseeeeeeerseessenseseseeesneessesseneseeesenees 11- People v. Ochoa (1998) 19 Cal4th 353 occeeececsecseeseesecsseeseceeesecceceessecereneecaeeeseseeseneeevaees 26 People v. Pompa-Ortiz (1980) 27 Cal.3d 519iceceeseeeeeeeneteeteeteeeteesssecseecsusnessesseeeeeessegees 16 iv People v. Rodrigues (1994) 8 Cal.4th 1060occecsscsecsecsssseesecsecesscsecsessesseesessccsssssrsseneeerens 25 People v. Salas (1972) 7 Cal.3d 812 oo. cccccseccessesssesecssesecescsaecsecsecsseceeeatssessrssssssaceasesens 16 People v. Verdin (2008) 43 Cal. 4thceecssessecsssseceseseesesssecseesessscsesuscessessessseaetasspassim People v. Watson (1956) 46 Cal.2d 818 oo. ccccccecsccsessecseesecsessecssccscsssesessevsersstavevsnsnnecateats 29 People v. Welch (1972) 8 Cal.3d 106ececceecccesetseccsssseesessesesseesesesessesssesssesecscsteeseeveess 16 People v. Williams (1997) 16 Cal.4th 153 ocececcescsesseseeseceessesecsseseeessessesessessesesecseveuseeeeses 16 People v. Wilson (1963) 60 Cal.2d 139 iccececssccscsscssesecsscnsessesscsessssesestesreseaees 16, 18, 20 Powell v. Superior Court (1957) 48 Cal.2d 704 oecceccccsccssesesecsesecsecscssesscsessesesseseeserssessacusseeeeserers 17 Raven v. Deukmejian (1990) 52 Cal.3d 336 ...ccccescccccssecssescesscsecsssscssscssssessecreessescsevacerscaseaseatees 12 Simmons v. United States (1968) 390 U.S. 377 [88 S.Ct. 967, 19 L.Ed.2d 1247] occeeeeeeeee 26 Smith v. Municipal Court (1959) 167 CalApp.2d 534 o.ccicccccccsesscseesssecsscsscsssscscessssssseseevaseavsaceneaees 17 State in Interest of W.C. (State v. Walls) (1981) 85 N.J. 218, 221, 426 A.2d DO. eseceesccecseeesscssessseseesceecseesecaeeaesaeesssssssssssesecsecseceseceesescsessesseeseateceaevsecseenaseas 9 State v. Boettcher (La. 1976) 338 S0.2d 1356 ...cccccececsccessscscecsseecssecsscesscessecsecesscssessescerseenees 9 State v. Campbell (1985) 219 Mont. 194, 711 P.2d 1357 o.cccccccccsscssssssessssessessceseseevecseeseeerees 9 State v. Emerson (1987) 149 Vt. 171, 541 A.2d 466 ooo. ceccccciecesssccccsececsecevecsesevtseseeersecenees 9 State v. Haselhorst (Mo. 1972) 476 S.W.2d 543 vec iieeeccccccccccsscecessecessecevseseessevsvassscsecceusvenenecensess 9 State v. Roberts (1968) 249 Or. 139, 437 P.2d 731 oeseseeeseaeecseaeseseseneeceeseseeneeeenenses 9 State v. Rossi (1985) 146 Ariz. 359, 706 P.2d 371 oo... ee eee eeeeeeeeeeeteesteetsesnneesseeesseseaeeens 9 State v. Tatum (1991) 219 Conn. 721, 595 A.2d 322 oooeccceec tees sceseeeseeseeeseteeeeeeeneeees 9 State v. Vasquez (1982) 122 N.H. 878, 451 A.2d 1297 ooo eceeesceseeeseneesseteseesseeenseeeneeens 9 Stovall vy. Denno 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199]occceeeseeeetreeeneees 27 United States v. Bagley (1985) 473 U.S. 667 [105 S.Ct. 3375, 87 L.Ed.2d 481]... ccecseeeeeeeenes 11 United States v. Causey (6th Cir. 1987) 834 F.2d 1277 oo..eeeccceccesscesceenesneeneeeeeerseseseessensesssenserseseseeenes 9 United States v. Estremera (2d Cir. 1976) 531 F.2d 1103...ees ceeceeeceecereeceeenedeseeserseeeessensecneserenesess 9 United States v. Hall (3d Cir. 1971) 437 F.2d 248... ccc ececescccceteneeneeseeeseeneseeeessetessenarsserseeeaeesens 8 United States v. Hurt (D.C. Cir. 1973) 476 F.2d 1164... cceccccecceceececceeeeeeecesneeseesnesneseeesaesansapees 9 United States v. Jackson (7th Cir. 1987) 835 F.2d 1195 occcccssecseeceeeceeeceeeeseeneceereeseeeessaeceasenseoneeees 9 United States v. Key (8th Cir. 1983) 717 F.2d 1206 .0.... eee eecceceeseeeeceeeseseceeteeenesecsesesesseesseensens 9 United States v. MacDonald (9th Cir. 1971) 441 F.2d 259 ooo eceeteeneeeeeeeeeeceeeeeaceatssetenseneeaeesseenteneues 7 United States v. Martinez-Mercado (Sth Cir. 1989) 888 F.2d 1484 oocccccccsceecereeeeeseeeeeeseneeeseesenneesscsaeenes 11 United States v. Ostertag (8th Cir. 1980) 619 F.2d 767 oeseeceseeseeeeeseecsseceesesonessaseseeessesseesensenees 9 United States v. Poe (Sth Cir. 1972) 462 F.2d 195 wc cccccccsccsseeeeeceseecseeeseeeseesesnerseteateeseeesensaees 8 vi United States v. Ravich (2d Cir. 1970) 421 F.2d 1196.0... ccc ccccecesscceesseceesseesseeeeneessetecsssesseeeeses 7,8 United States v. Robertson (Oth Cir. 1979) 606 F.2d 853 vo... ecccccscescssecssteeccenseesseesssestesssesesssseseesenaeens 9 United States v. White (4th Cir. 1973) 482 F.2d 485 ooo cceccccsscccssccssseeseeccsesesescsseseessescsseeecensaees 9 Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82]...6, 15, 16, 29 Weatherford v. Bursey (1977) 429 USS. 545, 97 S.Ct. 837, 51 L.Ed.2d 30]... ccccceesesseeeeteeeees 10 Wilson v, Commonwealth (Ky. 1985) 695 S.W.2d 854 oo. iccccccccccssscccssecesseesessecssesecsecsseeesetestsanes 9,18 Zamloch v. Municipal Court (1951) 106 Cal.App.2d 260 wo... ccccecccsccessestecssteeeescessesteccseseeecsseerteeessesses 17 STATUTES Pen. Code § 186.22, subd. (b)(1).......eepuecusecsncacesuacaueneauavssaccasecessectesseecestevacerserececs 4 § 245, subd. (2)(1) occ ceceesecssesssesceecssseseeeseeneeceseecesecsssesaeessessseeesensesersteceas 4 §§ 1054 through 1054.10 oo. cccscsccssceesseseecsesseesscsecessessseeserereseeteeeeseees 12 § 1054.4 cccccccsssscessseescessessecenssesecesssecususseceesasseveepecserecs 13, 14, 15, 29 $§ 1054, Ct. SOQ. occ ecceccsssecssecsesseesssceeesseesessceeceeceesscesseesaesersecsessersaeess 12, 13 § 1054, SUD. (€)..... cece cccsseccsssecesseeceseecessscssseecessssesseeeesesersesseaeees 12, 13, 16 § 1382... ec ecccccccsseccesceccessssecessseccevesssevseseesessrasasseveeeasvenuasssesnvavestancenseenseres 18 § 12020, subd. (8)(4) oc. cescceccsscessecseeesesenecsnseeverseeassesecesesstesaecsesenseeseeenes 4 CONSTITUTIONAL PROVISIONS Cal. Constitution Article I, § 30, subd. (C) ......cccccccccccscccesscccsseceesecesessssecseecessesessesseatessesseseneees 15 Article VI, § 10 ..occccccccscccsscccssesseecssecssecesecesssesseesensecssesseecsesessesssisssssenenseas 21 United States Constitution Fourteenth Amendment.........ccceccccec cece eeees 6, 25 COURT RULES Rules of Court TUE 8.485(a) oc. ceccecscccescecesscecsseesssceceessccssceceecccessssecsssecesercssecsusesessucnussesunes 21 vil INTRODUCTION In a random assault, several men who were wielding knives and baseball bats attackedtwo teenage boys as they walked downPolk Street in San Diego. Two hourslater, police apprehendedfive suspects just a few blocks from the scene of the crime. Oneofthe victims identified appellant during a field showup. Appellant was charged with two counts of assault with a deadly weaponandillegal possession of a knife. It was also alleged that his crimes were gang related. Before his preliminary hearing, appellant requested a lineup, but the trial court denied his motion. Thoughneither victim wasable to identify appellant at his trial, a jury convicted him as charged. Appellant alleges he was deprived of his federal due processright to a pretrial lineup and that the Court of Appeal incorrectly held the error wasnot harmless beyond a reasonable doubt. Appellant has not preserved his claims for review because he failed to seek a writ of mandate priorto trial. The right to a lineup must be asserted in a timely manner, prior to the point where evidence ofidentification is received. The value of holding a lineup disappears once there has been an in-court confrontation between a complaining witness and the defendant. After that point has been reached, the defendant has no adequate remedy on appeal. Application of such a forfeiture rule would work no unfaimess, because a defendantin appellant’s circumstances maystill challenge the suggestiveness of any intervening identification procedure and the reliability of the identification evidenceattrial generally. Even assuming, arguendo,that appellant preserved his claims, he fails to demonstrate that the trial court abusedits discretion, or that any error was prejudicial. STATEMENT OF THE FACTS AND THE CASE Around 5:00 p.m. on April 13, 2007, Jesus C. (“Jesus”) and Jonathan F. (“Jonathan”) were returningto the latter’s apartment after having shared a mealat a Jack-in-the-Box restaurant located in the City Heights neighborhood of San Diego. (2 RT 27-28, 55, 168.) As they were walking west on Polk and crossing Van Dyke,a red carthat had beentraveling eastbound on Polk came to a stop. The front seat passenger emerged, walked up to the boys, and asked, “How’sthe east side treating you?” (2 RT 29-30, 56-57, 72-74.) Taking this to be a gang-related challenge, both Jesus and Jonathan replied that they did not “bang.” (2 RT 30-31, 76, 131- 132.) The car’s passenger then took a swing at Jesus, who backed up in order to avert the blow. (2 RT 32-33, 79.) At that moment, a white car pulled up behind the red one. As if on cue, the occupants of both cars stepped out. The men in the cars were Hispanic and most of them had shaved heads. Both boysrecalled seeing three or four men advancing upon them from a distance of about 12 feet; they saw one man carrying a knife and at least one other man carrying a bat. Jesus had a specific recollection that the bat was black. At that point, Jesus and Jonathan beganto run in a northbounddirection. (2 RT 31-35, 57-60, 75, 78-82, 129-130, 134-135, 138, 150-153, 157.) Some members of the group remained behind, while the rest divided up and began pursuing -the two boys. The victims estimated that between 10 and 12 men had been riding in the two cars; however, only two men were chasing Jesus and “about three” men were chasing Jonathan. (2 RT 35, 42, 61-62, 83, 100- 101, 135, 149-150, 160-161, 164-165.) As he ran, Jesus heard one of his pursuers say, “Stop running or I’m going to shank you.” (2 RT 36.) During the chase, Jesus looked back “a couple of times.” (2 RT 61, 80.) He could see one man about twofeet behind him, swinging a knife from side to side. (2 RT 36-39.) After running abouthalf a block, Jesus’s assailants grew tired and abandoned their efforts. (2 RT 39-40, 81.) Jesus looked back again and couldsee the men returning to their cars. One of the men was carrying a black bat. Jesus looked for Jonathan, but he could not see him. (2 RT 35, 40, 62-63, 88-89, 93-94.) Jesus left to retrieve a bat from a nearby apartment, then returned to the scene. In the meantime, a neighbor had summonedpolice, and his attackers had left. Jesus encountered Jonathan, who was bleeding from his head. (2 RT 41-42, 94-96.) According to Jonathan, a short time after the chase began, oneof the men hadstruck him from behindin the back of the head with a baseball bat, knocking him to the ground. The force of the blow had opened up a wound abovehis right ear, which required nine stitchesto close. (2 RT 138-142.) Several police officers who respondedto the call saw a red Ford parkedin front of a house at 4227 Wightman,near the sceneoftheattack. (2 RT 168-172, 228.) Four males who appeared to be Hispanic and who had shaved headsor short hair were sitting in the front yard. (2 RT 171.) Whenthe officers got out of their car, two of the menran into the house. The two men whoremainedin the yard weresitting on chairs with East San Diego gang graffiti etched on them and werelater identified as appellant and co-defendant Jorge Lopez. (2 RT 172, 204-205, 213, 229.) During a search of appellant, police found a steak knife in appellant’s right pants pocket. (2 RT 230-231.) Inside the house, the officers found Adrian Pasillas, one of the men whohadbeeninthe front yard, hiding under the covers in bed pretending to be asleep. (2 RT 176-177, 205, 232.) Pasillas was sweating profusely and his shirt was damp with sweat. Healso had abrasions on his head and dried blood onhis face, neck and shirt. The officers found two bats in the side yard next to a can of black spray paint. The bats had recently been spray-painted black. (2 RT 179-183, 233-234, 255-256.) Several hours after the attack, police brought Jesus to the house for a curbside lineup. (2 RT 45-46; 3 RT 283.) Appellant and his three co- defendants participated in the lineup along with a Caucasian male who had been in the house. (2 RT 183-184.) Atthe time ofthe lineup, it wasstill daylight. (2 RT 186; 3 RT 287.) Jesus remainedinthe back seat ofthe police car which was parked directly in front of the suspects at a distance of approximately 35 feet. (2 RT 184; 3 RT 288.) Jesus identified appellant and his three co-defendants as his assailants. He said that the Caucasian male had not been involvedin the attack. (2 RT 290-294, 304-305.) A monthafter the attack, police showed a photographic lineup to Jonathan, which includeda picture of appellant. Whenaskedif appellant wasoneofthe attackers, Jonathan stated that he thought appellant might have been one of the men in the red car, but he was not sure. (2 RT 145- 146, 156; 3 RT 349.) Appellant was charged with two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of carrying a concealed dirk or dagger (Pen. Code, § 12020, subd.(a)(4)). It was also alleged that he committed his crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).! (1 CT 1-4.) Prior to his preliminary hearing, appellant moved to hold a lineup. Thetrial court denied his motion, upon a finding that the circumstances ofhis case did not present any reasonable likelihood of a mistaken identification which a lineup would tend to resolve. Appellant did not challenge the denial ofhis motion by application for extraordinary writ. During both his preliminary hearing andhis trial, the complaining witnessestestified they were unable to identify him. The jury convicted him as charged, and the sentencing court granted appellant probation. (1 CT 84, 120-124.) ' Co-defendants Jorge Lopez, Adrian Pasillas, and Ricardo Sanchez werealso jointly charged with two counts of assault with a deadly weapon and the attached gang enhancements. (1 CT 1-4.) Sanchez pled guilty to the crimes and the enhancements. A jury found Lopez and Pasillas guilty of the crimes and found true the enhancements. (1 CT 66, 95-96, 118-119.) Appellant contended on appeal that the trial court erroneously denied his motion for pretrial lineup, and the error was prejudicial under Chapman.’ (Slip Opn.at p. 4.) Division One of the Fourth District Court of Appealaffirmed the judgment. The appellate court concludedthat “a defendant’s right to relief is waived if he does not challenge an adverse ruling by atimelypretrial petition for a preemptory writ.” (Slip Opn. at p. 6.) Addressing the issue on the merits, the Court of Appeal held that even if the trial court had abusedits discretion, the error was harmless beyond a reasonable doubt. (Slip Opn.at p. 8.) This Court granted appellant’s petition for review. ARGUMENT I. BECAUSE HE DID NoT SEEK PRETRIAL WRIT RELIEF, APPELLANT’S CLAIMS ARE FORFEITED In his Opening Brief on the Merits (BOM)appellant asserts the Court of Appeal erred whenit heldthat he forfeited his right to complain that he was denied pretrial lineup on direct appeal because he failed to challenge the trial court’s ruling by seeking a writ of mandate. (BOMatp. 2.) Appellant contendsthat“there is no statutory authority or case law [supporting] the proposition that defendants who wantto obtainappellate review ofthe denial of a lineup motion mustfirst seek immediate review by filing a petition for a writ of mandate.” Appellant believes that imposition of a forfeiture rule in this context would intrude uponthelegislatively established scheme for post-judgment review, and conflict with other holdings by this Court. (BOMat p. 9.) Before addressing these questions, it is necessary first to determine the natureofthe right to a pretrial lineup that this Court identified in Evans v. Superior Court (1974) 11 Cal.3d 617 * Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman). (Evans), and whetherit has survived the passage of Proposition 115. Based on this review,it is clear that a rule requiring a defendantto timely preserve his right to a pretrial lineup by meansof seeking a writ of mandate to challenge an adversetrial court ruling is entirely consistent with both Evans and the policies identified in that decision. Further, it is appropriate to apply this rule to appellant. A. The Due Process Right To A Pretrial Lineup In Evans Is Guaranteed Only By The California Constitution In Evans, the defendantfiled a “Notice of Motion for Lineup” following his preliminary hearing but prior to the commencementoftrial. (Evans, supra, 11 Cal.3d at pp. 620-621.) Though the court below concluded the motion was potentially meritorious because “an in-court identification of the defendant seated at a counsel table is inherently suggestive,” it believed it lacked the discretion to order the prosecution to hold a lineup and accordingly denied it. The defendant then appliedto this Court for a writ of mandate. (/d. at p. 621.) In granting the writ, this Court observed there were no cases “holding as a matter of discovery in criminal matters that a trial court may order the granting of a defendant’s request fora pretrial lineup.” (/d. at p. 621.) Evanssoughtto fill an existing gap in the discovery process by creating a mechanism whereby“prior to the in-court receipt of evidence of identification the accused can insist that procedures be afforded whereby the weaknessofthe identification evidence,if it is in fact weak, can be disclosed.” (/d. at p. 622.) While the prosecution had the meansto arrangea pretrial lineup, a defendant was unable to avail himself of the same procedure. The Evans court cited Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82] (Wardius), a case that struck down Oregon’s “notice ofalibi provision”as a violation of due process of law under the Fourteenth Amendmentbecausethatstatute failed to provide reciprocal discovery rights to the defense. (Evans, supra, 11 Cal.3d at p. 623.) Analogizing to the circumstances presented in Wardius, the Evans court found that the prosecution’s superior ability to hold a lineup created an asymmetrical discovery scheme which gaveit an evidentiary advantageattrial: Because 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 reciprocalright to discover and utilize contrary evidence. (Citation). In Wardius the United States Supreme Court stated that “although the Due Process Clause haslittle to say regarding the amount of discovery which the parties must be afforded . . . , it does speak to the balance of forces between the accused and his accuser. ... We do not suggest that the Due Process Clause ofits own force requires Oregon to adopt [discovery proceedings] .... But we do hold that in the absence of a strong showingofstate interests to the contrary, discovery must be a two-waystreet. The State may not insist that trials be run as a ‘search fortruth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.” . (Evans, supra, |1 Cal.3d at p. 623.) The Evans court clarified it was not holding that “in every case where there has not beena pretrial lineup the accused may, on demand, compel the People to arrange for one.” (/d. at p. 625.) Instead, it specified that the determination whether due process requires that a lineup be held in a particular case “necessarily rests[s] . . . within the broad discretion of the magistrateortrial judge.” (bid [citing United States v. MacDonald (9th Cir. 1971) 44] F.2d 259; United States v. Ravich (2d Cir. 1970) 421 F.2d 1196, 1202-1203].)° 3 Indeed, Ravichitself held, “We would likewise not be disposed to hold a lineup to be so essential to the presentation of a proper defense concerning identification that refusal to arrange one on a defendant’s (continued...) The Evans Court concluded that the right to a lineup is nevertheless limited: [D]ue process requires in an appropriate case that an accused, upon timely request therefore, be afforded a pretrial lineup in which witnessesto 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 whicha lineup would tendto resolve. (bid.) Stressing the importance of making the motion in a timely manner, the Evans court added that a motion for a pretrial lineup should “normally be made as soon after arrest or arraignmentas possible,” and added that “motions which are not made until shortly before trial should, unless good cause is clearly demonstrated, be denied in most instances by reason of such delay.” Ud. at p. 626.) While Evans invoked “due process”in reaching its holding, it did not specify whetherthis right was groundedin the federal or state Constitution. Reasonably construed, Evans identified a federal due processright only to reciprocal discovery procedures, and notto a pretrial lineup itself. A contrary conclusion that Evans recognized a federal right would place Evans in conflict with the holdings of courts in manyjurisdictions. Though the United States Supreme Court has not spoken to the issue (Moorev. Illinois (1977) 434 U.S. 220, 230, fn. 5 [98 S.Ct. 458, 54 L.Ed.2d 424)),all but one federal circuit and the high courts of manystates have held thereis no federal constitutional right to a pretrial lineup. (See, e.g., Haskinsv. United States (10th Cir. 1970) 433 F.2d 836, 838; United States v. Hall 3d Cir. 1971) 437 F.2d 248, 249; United States v. Poe (Sth Cir. 1972) 462 F.2d (...continued) requestis a denial of due process of law.” (United States v. Ravich, supra, 421 F.2d at p. 1203.) 195, 198; United States v. Hurt (D.C. Cir. 1973) 476 F.2d 1164, 1168; United States v. White (4th Cir. 1973) 482 F.2d 485, 488; United States v. Estremera (2d Cir. 1976) 531 F.2d 1103, 1111; United States v. Robertson (9th Cir. 1979) 606 F.2d 853, 857; United States v. Ostertag (8th Cir. 1980) 619 F.2d 767, 771; Code v. Montgomery (11th Cir. 1984) 725 F.2d 1316, 1320, fn. 4; United States v. Jackson (7th Cir. 1987) 835 F.2d 1195, 1198; United States v. Causey (6th Cir. 1987) 834 F.2d 1277, 1286; State v. Rossi (1985) 146 Ariz. 359, 363, 706 P.2d 371; State v. Tatum (1991) 219 Conn. | 721, 729, 595 A.2d 322; Laury v. State (Del. 1969) 260 A.2d 907, 909; People v. Brinkley (1965) 33 Il.2d 403, 406, 211 N.E.2d 730; Dunlap v. State (1973) 212 Kan. 822, 823, 512 P.2d 484; Wilson v. Commonwealth (Ky. 1985) 695 S.W.2d 854, 858; State v. Boettcher (La. 1976) 338 So.2d 1356, 1361; Cummings v. State (1969) 7 Md.App. 687, 690, 256 A.2d 894, 896; State v. Haselhorst (Mo. 1972) 476 S.W.2d 543, 546-547; State v. Campbell (1985) 219 Mont. 194, 199-200, 711 P.2d 1357; State v. Vasquez (1982) 122 N.H. 878, 880, 451 A.2d 1297; State in Interest of W.C. (State v. Walls) (1981) 85 N.J. 218, 221, 426 A.2d 50; State v. Roberts (1968) 249 Or. 139, 143, 437 P.2d 731; Commonwealth v. Evans (1975) 460 Pa. 313, 315-316, 333 A.2d 743; State v. Emerson (1987) 149 Vt. 171, 176, 541 A.2d 466; Holmes v. State (1973) 59 Wis.2d 488, 503, 208 N.W.2d 815; but see United States v. Key (8th Cir. 1983) 717 F.2d 1206, 1209 (“Even though there is no constitutional right to compel the governmentto conduct a line-up . . . many times a court can and should compel the government to do so if the interests ofjustice and fair play require it”); Appeal ofMcGuire (1st Cir. 1978) 571 F.2d 675, 677 (“Theline-up is intended for the | protectionofthe individuals’ constitutional rights in order to avoid improper suggestiveness in any confrontation”); Commonwealth v. Sexton, (1979) 485 Pa. 17, 23, 400 A.2d 1289 (“While we concedethat under the present state of the law it has not been determined that an accused has a constitutional right to a lineup . . . it does not follow,as thetrial court suggests, that a judge can arbitrarily and capriciously deny such a request” [citations omitted]).) | Evans madeit clear that a defendantis not entitled to a pretrial lineup on demand. (Evans, supra, 11 Cal.3d at p. 625.) What is more, “ ‘There is no general constitutional right to discovery in a criminal case[.]” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-60 [quoting Weatherfordv. Bursey (1977) 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30].) Consequently, the right that arises to a lineup when identification is a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve must be deemed a due process right under the California Constitution only. To the extent that any language in Evans suggests a federal due processright is denied under such circumstances,it should be disapproved. In identifying the right to a pretrial lineup, the Evans court cited Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215} (“Brady”), and framed the issue as one involving the disclosure of exculpatory or impeachment evidence: Here petitioner seeks to compel the People to exercise a duty to discover material evidence which does not now,in effect, exist. Should petitioner be denied his right of discovery the net effect would be the sameas if existing evidence were intentionally suppressed. It is settled that the intentional suppression of material evidence denies a defendanta fairtrial. (Evans v. Superior Court, supra, 11 Cal.3d at p. 625 [citing Brady, supra, 373 US.at p. 87.) The analogy to Brady is inapposite. Under Brady, the prosecution must disclose any evidencethat is ‘favorable to the accused’ andis ‘material’ on the issue of either guilt or punishment.” (City ofLos Angeles v. Superior Court (2002) 29 Cal.4th 1, 7.) Evidence is considered material 10 eee when ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” (Ibid [quoting United States v. Bagley (1985) 473 U.S.667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481].) “Brady and its progeny serve ‘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 [quoting United States v. Martinez-Mercado(5th Cir. 1989) 888 F.2d 1484, 1488].) Asa discovery procedure, a pretrial lineup is calculated to produce admissible evidence which maybe ofassistance to the jury in determining a witness’s credibility or the defendant’s guilt of the charged offense. However, at the point where a motionfor pretrial lineup is made,thereis no evidence to “disclose.” What is more,if a pretrial lineup is held and a complaining witness identifies the defendant unequivocally, then the evidence would not be “favorable to the accused” and would not meet the test for materiality under the federal constitutional standard. In that regard, the denial of a motion fora pretrial lineup cannotbe said to involve the intentional suppression of material evidence. Even if Brady provided the appropriate framework within which to create a reciprocal right to seek discovery in the form ofa pretrial lineup, Evans doesnotstand for the proposition that the denial of such a motion runs afoul of the constitutional standard informing Brady.. Further, in cases wherea pretrial lineup has been denied, neither the prosecution nor the government has committed any misconduct, either by intentionally suppressing or destroying exculpatory evidence or by wrongfully denying a defendant’s discovery request. If a violation is committed,it is on the part ofthe trial court, and is analogous to any other form oftrial error. 11 B. Evans Has Not Been Superseded By Proposition 115 Although the Court of Appeal expressed “somereservations” whether a defendant’s right to seek a pretrial lineup had “survived the enactment of Proposition 115,” it nevertheless proceeded on the “assumption”that Evans had not been superseded. (Slip Opn.at p. 6.) The Court of Appeal noted that in the wake of Proposition 115, Penal Code section 1054, subdivision (e) now provides, “no discovery may occurin criminal cases except as provided by [Penal Codesections 1054 through 1054.10], other express statutory provisions, or as mandated by the [federal] Constitution.” (Slip Opn.at p. 6; see also Raven v. Deukmejian (1990) 52 Cal.3d.336, 343-344.) Sincethere is no federal constitutional rightto a pretrial lineup, the question remains whether such a procedure is authorized by the provisions of Penal Code sections 1054,et. seq. In People v. Verdin (2008) 43 Cal. 4th at page 1096 (Verdin), this Court had occasion to examinethe effect of Proposition 115 on the prosecution’s attempt to obtain the mental examination of a defendant who wasaccused of attempted murder and whoplannedto offer a defense of diminished actuality at trial. The Verdin court determined that a mental examination is properly deemed a form ofpretrial discovery and that several cases, including People v. McPeters (1992) 2 Cal.4th 1148 (McPeters), People v. Carpenter (1997) 15 Cal.4th 312 (Carpenter), and People v. Danis (1973) 31 Cal.App.3d 782 (Danis) had purported to authorize the procedure. However, the Verdin court held that those cases had not survived the passage of Proposition 115. (People v. Verdin, supra, 43 Cal.4th at pp. 1106-1007.) The Verdin court first rejected the Danis court’s contention that a judge’s inherent powerto order discovery permitted the prosecution to obtain a court-ordered mental examination from the defendant even in the absenceofan “authorizing statute,” noting that “no part of its reasoning can 12 have survived the enactment of [Penal Code] section 1054, subdivision (e).” (Verdin v. Superior Court, supra, 43 Cal.4th at p. 1107.) The Verdin Court also criticized both McPeters and Carpenter because those decisions failed to articulate the foundation for their assertion that a rightarises in the prosecution “to discovery in the form of a mental examination” whenevera criminal defendant“places his mentalstate in issue.” Accordingly, the Verdin court rejected the holdings of those cases, opining that since “neither McPeters nor Carpenterrests ona statutory or constitutionalbasis, both are inconsistent with [Penal Code] section 1054, subdivision (e).” (Ibid.) The Verdin court concludedthat any such rule in existence before 1990 had been superseded by Penal Code section 1054,et. seq., and that “nothing in the criminal discovery statutes . . . authorizes a trial court to issue an order granting such access.” (/d. at p. 1109.) The prosecution next argued that Penal Code section 1054.4* authorized its expert to gain accessto the petitioner to perform a mental examination. (/d. at p. 1110.) However, the Verdin court observed that the exemption created by Penal Code section 1054.4 referred to the prosecution’s ability to obtain nontestimonial evidence. Finding that the statements petitioner would make during the course of a mental . examination would necessarily be communicative, any evidence derived from such a procedure would also be unquestionably testimonial. (Id. at p. 1112.) The Verdin courtcontrasted that type of evidence withtraditional * Penal Codesection 1054.4 specifies, Nothingin this chapter shall be construed as limiting any law enforcementor prosecuting agency from obtaining nontestimonial evidence to the extent permitted by law on the effective date ofthis section. . 13 examples of nontestimonial evidence, such as pretrial lineups. (/d.at p. 1111.) Finally, the Verdin court addressed the prosecution’s claimsthat denyingit this type of pretrial discovery violatedits rights under the federal and thestate Constitutions. In the first instance, this Court held that even if such discovery might be permitted by the federal charter, nothing in the United States Constitution mandates such an order. (/d. at p. 1115.) The Verdin court also brushedaside the prosecution’s claim that it would be denied its due process rights under the state Constitution were it unable to obtain a mental examination ofpetitioner. After respondent argued “the prosecution cannot meaningfully meet petitioner’s evidence without an opportunity to examinepetitionerpriorto trial,” this Court responded: While it is probable the People could more effectively challenge | petitioner’s anticipated mental defense if a prosecution expert were granted access to him for purposes of a mental examination, that probability does not establish that denial of such accessviolatesarticle I, section 29 of the California Constitution. Should petitioner present a mental defenseattrial, the People’s strong interest in prosecuting criminals can often be vindicated by challenging that defense in other ways. (Verdin v. Superior Court, supra, 43 Cal.4th at 1115-1116.) As examples, this Court noted that the prosecution would have the opportunity duringtrial to challenge “the defense expert’s professional qualifications and reputation, as well as his perceptions and thoroughness of preparation.” The Verdin court also offered that the prosecution’s own experts would be able to review both the report and the interview notes provided by the defense expert, and “commenton petitioner’s alleged mental condition.” (/d. at p. 1116.) Having found that a mental examination wasnot authorized either by the criminal discovery statutes or any other statute, and was not mandated by the United States Constitution, the Verdin court instructed the Court of 14 Appealto issue a writ of mandate directing the trial court to vacate its previous order and issue a new one denying the People’s motion. (/d. at pp. 1116-11 17.) In that vein, the Verdin court held that “following Proposition 115 and the enactment of the exclusivity guidelines” in the discovery statute, “we are no longerfree to create such a rule of criminal procedure, untethered to a statutory or constitutional base.” (/d. at p. 1116.) The Verdin court also observed that “Our conclusion renders it unnecessary to decide whetherthetrial court’s order violates petitioner’s constitutional rights.” (bid.) Becausea pretrial lineup is nontestimonial, and becausetherightto such a lineup under Evans predated Proposition 115, Penal Code section 1054.4 would appear to continue to extend that right. Although the language of Penal Code section 1054.4 confers the exemption for gathering nontestimonial evidence upon law enforcementor prosecuting agencies only, in light of the California Constitution’s commandthat “discovery in criminal cases shall be reciprocal in nature” (Article I, section 30, subdivision (c)), Penal Code section 1054.4 mustbe read to apply the same exemption to a defendant’s attempts to obtain such evidence. (See Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377 [“‘we conclude that the new discovery chapter enacted by Proposition 115 creates a nearly symmetrical schemeof discovery in criminal cases, with any imbalance favoring the defendant as required by reciprocity underthe due process clause”] (citing Wardius v. Oregon, supra, 412 U.S.at p. 475, fn. 9).) Penal Code section 1054.4 also specifies that nontestimonial evidence may beobtained “‘to the extent permitted by law onthe effective date ofthis section.” Evans was decided in 1977, and so it was in effect when the electorate approved Proposition 115 in 1990. It would appear,then, that Evanshas not been supersededbythat ballot measure. Construing Penal Code section 1054.4 so as to free the prosecution, and not the defense, from 15 the exclusivity provisions of Penal Code section 1054, subdivision(e), would also run afoulofthe federal due process right to reciprocal discovery that was announced in Wardius, supra, and that servedas the basis for this Court’s ruling in Evans. This Court’s case law subsequent to Proposition 115 has also assumedthe continuing viability of Evans. (People v. Farnam (2002) 28 Cal.4th 107, 183; People v. Williams (1997) 16 Cal.4th 153, 235; People v. Hansel (1992) 1 Cal.4th 1211, 1220-1221.) C. Because The Value OfA Pretrial Lineup Disappears Following A Live Confrontation Between The Defendant And A Complaining Witness, He Must Pursue A Writ Of Mandate To Preserve His Claim Of course, Evans itself addressed petitioner’s application for a writ of mandate,filed after the trial court had denied his motion fora pretrial lineup. This Court has observed that a challenge brought by pretrial writ confers certain advantages, because a defendant whowaits to bring his claim until after he has been tried and convicted has the additional burden of demonstrating resultant prejudice on direct appeal from the judgment. (See, e.g., People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [where defendant did not pursuepretrial writ relief, he was required to establish prejudice to prevail on claim that preliminary hearing was improperly closed to public]; see also People v. Wilson (1963) 60 Cal.2d 139, 152 [same, denial of defendant's right to trial within a prescribed statutory time period]; People v. Welch (1972) 8 Cal.3d 106, 113 [same, change of venue]; People v. Salas (1972) 7 Cal.3d 812, 818-819 [same]; Harris v. Superior Court (1977) 19 Cal.3d 786, 799 [same, appointment of counsel, noting “statement of counsel preference mustbe ‘timely made’ ”].) Anotherline of cases views the writ as a necessary expedient where “initiative is required to protect a defendant’s fundamentalright to a fair trial.” (Maine v. Superior Court (1968) 68 Cal.2d 375, 378 [change of venue]; see also Cash v. Superior Court (1959) 53 Cal.2d 72, 75 16 [opportunity to inspect and copy statements made by defendantto law enforcementofficers]; Powell v. Superior Court (1957) 48 Cal.2d 704, 707 [same]; Funk v. Superior Court (1959) 52 Cal.2d 423 [discovery of police officers’ notes regarding statements of witnesses]); Cornell v. Superior Court (1959) 52 Cal.2d 99 [hypnotic examination of a defendant]); Harris v. Municipal Court (1930) 209 Cal. 55 [dismissal of a criminal action not broughtto trial within the time required by law]); Zamloch v. Municipal Court (1951) 106 Cal.App.2d 260 [dismissal where a defendant has been denied the constitutional right to a speedytrial]); Gomez v. Superior Court (1958) 50 Cal.2d 640 [case transfer]; Smith v. Municipal Court (1959) 167 Cal.App.2d 534 [same]). This theory rests on the proposition that the “Talvailability of appealoften falls short of sufficient protection, since ‘the burden, expense and delay involvedin a trial render an appeal from an eventual judgmentan inadequate remedy. supra, 68 Cal.2d at p. 378.) (Maine v. Superior Court, Appellant relies extensively on People v. Memro (1985) 38 Cal.3d 658, 676, for his assertion that a forfeiture rule should not apply in the contextofpretrial discovery. (BOM at 14-17.) That case is inapposite. In Memro,the defendant sought to establish that his confession should be excluded because it hadbeen obtained by meansofpolice coercion. In order to bolster his claim, the defendant sought discovery in the form of investigative reports referencing complaints received against those officers concerning their use of excessive force or violence. (People v. Memro, supra, 38 Cal.3d at p. 674.) The prosecution argued that appellate review should be precluded because the defendant hadnotfirst sought to overturn the ruling by meansofa pretrial writ, but this Court declined to impose such a requirementas a condition to review on appeal. (/d. at pp. 675-676.) In reaching its conclusion, Memro cited People v. Wilson, supra, 60 Cal.2d 139 (Wilson), a case that discussed whether a defendant who had not 17 challenged an alleged violation of his constitutional right to speedy trial by writ could still assert his claim on direct appeal. In this context, the Wilson court adverted to the paradoxical circumstances of a defendant who challenges the denial of the right post-judgment. Noting that the purpose of Penal Code section 1382 is to protect the accused from having charges pending against him for an undue length of time, the Wilson court observed: But in the case at bench nothing that any court can do now will achieve that end; the charges are no longer pending against defendant; the delay has ended, and he has been dulytried and convicted. It is, very simply, too late for defendant to seek to be relieved of a delay that no longerexists. (Wilson, supra, 60 Cal.2d at p. 151 [emphasis in original].) The Wilson court also found, however, that while it was “too late to relieve defendant of the delay in bringing him to trial,” he wasstill in a position to obtain appellate review of the matter, where the Court could weigh “the effect of the delay in bringing defendantto trial or the fairness of the subsequenttrial itself.” ([bid.) Thesituation here is unlike that presented in Memro. While the application of a general forfeiture rule to discovery requests may be both unwise from a policy perspective and unsupported by case law, the unusual circumstances surroundingpretrial lineups counsel a holding by this Court that a defendant whoseeksto challenge the denial of his motion must do so by writ of mandate because he has no adequate remedy on appeal. By waiting to do so until after his trial’s completion, a defendant has ensured that the evidentiary value of any subsequent lineup would be negated and would therefore do nothing to increase the reliability of a secondtrial, or increase the accuracyofthe jury’s fact-finding. Appellant acknowledged as muchin his supplemental briefing for the Court of Appeal. (SAOBat pp.6- 7.) In short, his failure to seek redress pretrial precludes appellant from 18 effectively vindicating the right he was assertedly denied. In Memro, by contrast, the evidence that the defendant sought wasstill available to him post-appeal. The Evans Court limited the right it created to those instances where a “timely request” has been made. (Evans, supra, 11 Cal.3d at p. 625.) In Evans, this Court also declared that a motion fora pretrial lineup should “normally be made as soon after arrest or arraignment aspracticable” (/d. at p. 626.) Four years after it decided Evans, this Court observed that “The value ofa pretrial lineup is substantially diminished once a preliminary examination has been conducted and a direct confrontation between a defendantand his accusers has occurred.” (People v. Baines (1981) 30 Cal.3d 143, 148.) | As the Evans court framedtheissue, ““The question is whetherpriorto the in-court receipt of evidence of identification the accused can insist that procedures be afforded whereby the weakness ofthe identification evidence,if it is in fact weak, can be disclosed.” (Evans, supra, 11 Cal.3d at p. 622 [italics in original]. The Court of Appealin the instantcase aptly characterized the nature of the Evans right as “ephemeral”(Slip Opn.atp. 8), and appropriately concluded that absent a challenge by writ, the ensuing delay in seekingrelief “thwarts the purposes served bythe right conferred under Evans and prevents a court reviewing the claim . . . from fashioning any appropriate relief even ifit finds error.” (Slip Opn.at p. 7.) A writ requirementis logically derived from an intrinsic analysis of the emphasis Evansitself places on a timely assertion of the rightto a pretrial lineup. It exists until an in-court confrontation between the defendant and the witness occurs; it can only be enforcedpriorto that event. Accordingly, appellant’s case must be distinguished from cases such as Wilson, whichheld that notwithstanding the lack of a remedyfor the violation, a defendantretains the right of review on appeal, where the Court 19 may weigh “ ‘the effect of the delay in bringing defendantto trial or the fairness of the subsequenttrialitself,’ ” and relief maystill be granted. (Wilson, supra, 60 Cal.2d at p. 151.) It must also be distinguished from cases such as Memro, where a defendant maystill obtain the discovery he was denied. Thoughit is true that a lineup maystill be held on remand, due to the fact that the complaining witness has already viewed the defendantat trial, its evidentiary value is irremediably compromised. And since appellant was deprived of the evidenceas the result of his own inaction and not because of prosecutorial or governmental misconduct, sanctions including dismissal, suppression of the identification evidence, or an instruction creating an adverse presumption regarding identification are unwarranted. Given Evans ’s holding that the right to a lineup must be timely asserted, and subsequentholdings by this Court that the evidentiary value of a lineup nears a vanishing point once the preliminary hearing has been held, appellant cannot be heard to complain, as he does, that a forfeiture rule would be “new”andthat it should not be applied “retroactively” to his case. (BOMat pp. 20-21.) The forfeiture rule is well settled in this Court’s jurisprudence;its application would not present a “clear break” with past precedent. (Griffith v. Kentucky (1987) 479 U.S. 314, 324-325 [107 S.Ct. 708, 93 L.Ed.2d 649].) This Court reserved the question of whether appellant’s claim was timely asserted in People v. Farnam, supra, 28 Cal.4th at page 184. Accordingly, a forfeiture rule such as the one contemplated here would neither overrule a past precedent of this Court, nor disapprove a practice this Court has arguably sanctionedin prior cases, nor overturn a longstandingpractice that lower appellate courts in this state have uniformly approved. (Griffith v. Kentucky, supra, 479 U.S.at p. 325.) The fact that this Court has considered claims concerning the denial of a pretrial lineup on direct appeal does not meanthat it has sanctionedtheir 20 post-judgment review. Until now,this Court has never been squarely presented with that question. In arguing that a writ requirementis ill-advised, appellant raises the specter that a Court of Appeal maydenyrelief in a written opinion, and the law of the case doctrine may be applied to circumvent any subsequent review of the issue by this Court. (BOM at 10.) As appellant concedes (BOM atp. 17), following an adverse ruling on his writ application by the Court of Appeal, he would have the opportunity of seeking review ofthe judgment from this Court. Alternatively, he could seek writ relief from this Court in the first instance, since it has original jurisdiction. (Cal. Constitution, Art. VI, § 10; Rules of Court, rule 8.485(a)). It is no doubt the unavailability of a remedy on appeal which has led to the paucity of opinions that have addressed the subject. Respondenthas only found a single case, Commonwealth v. Sexton, supra, 485 Pa. at p. 17 (Sexton), where a reviewing court found an abuse ofdiscretion on direct appeal and had occasion to fashion an appropriate remedy on remand. Sexton only serves to underscore the lack of a remedy under the circumstancespresented by the instant case. In Sexton, the defendant robbed a cashier at gunpoint. A store customer observed the defendant for approximately one minute before he approachedthe cashier, and also pursued the defendant as he fled. Thefirst time that the customeridentified the defendant wasat his preliminary hearing, and that identification was the only evidence connecting the defendant to the crime. The defendant had movedfora pretrial lineup before his preliminary hearing washeld, butthetrial court denied his motion. (Sexton, supra, 485 Pa. at p. 20.) On appeal, the Pennsylvania Supreme Court disagreed with the lower court’s resolutionof the case,asit had reversed so that further hearings could be held to determine whether the suggestive one-on-one confrontation between the defendant and the 21 complaining witnessat the preliminary hearing had tainted the subsequent in-court identification. (/bid.) After finding the circumstances surroundingthe identification at the preliminary hearing were not “so unreliable as to offend due process,” the Sexton court turned to whatit considered the “difficult aspect” of the case, involvingthe trial court’s denial of the motion for a pretrial lineup. The Sexton court declared it could “perceive of no situation where such a request would be more warranted,” considering that the sole evidence connecting the defendantto the crime wasthe identification of the customer, “who had no knowledge of [the defendant] before the incident, observedthe culprit briefly before and during the crime, had no contact with the [defendant] between the arrest and the certification hearing, and had not been presented with an opportunity of a photographic identification prior to the hearing confrontation.” (Sexton, supra, 485 Pa. at pp. 22-23.) Though the Sexton court conceded the United States Supreme Court had not determined whether a defendant has a constitutionalright to a pretrial lineup, it observed that the high court “recognized the importance that such a procedure may have in ameliorating the suggestiveness ofa courtroom confrontation andin insuring the reliability of identification evidence.” (Sexton, supra, 485 Pa. at pp. 23-24 [citing Moorev. Illinois, supra, 434 U.S. at pp. 230-231, fn. 5.].) The Sexton court then noted that, “Where it is shownthat[the trial court’s] decision is withoutjustification and that the accused has been substantially harmed thereby,it is incumbent upon the reviewing court to provide a remedy commensurate to the harm sustained by the party receiving the adverse ruling.” (/d.at p. 24.) The Sexton court took issue, however, with the lower court’s holding that since no remedy wasavailable, the courtroom identifications should be excluded. In fashioning its proposed remedy, the Sexton court opined that the purposeofa pretrial lineup is “to provide a setting whichis less 22 suggestive than the one-on-one confrontation provided by an in-court identification.” (Sexton, supra, 485 Pa. at p. 24.) Underthe circumstances presented by Sexton, where there had been no intervening identification of the defendant by the complaining witness, the Pennsylvania Supreme Court observed that the defendant had been denied the benefit of having the victim identify him in a setting that was more objective than that offered at his preliminary hearing. (/d. at pp. 20, 24.) It reasoned that the defendant had perhaps“lost the possibility that under’such circumstances either an identification could not have been made,or that itmight have been made with apparent uncertainty or hesitancy.” (/bid.) After first noting that evidentiary sanctions are reserved for instances of governmental misconduct or impropriety, the Sexton court determined that excluding the in-court identifications because pretrial lineup was not held would be “punitive rather than remedial” as well as “unduly harsh and out of proportionto the injury sustained.” (/d. at pp. 24, 26.) It then concludedthatthe violation of appellant’s right could properly be cured by a charge to the jury on remand, which wouldinstruct jurors that “[the defendant] had been denied the opportunity for a more objective identification and for that reason the subsequentlessreliable identification could be viewed with caution.” (/d. at p. 25.) Even this remedyis inapplicable to the circumstances of the instant case. The Sexton court’s finding that an injury had beensustained bythat: defendantarose from the fact that no intervening identification had been made by the complaining witness betweenthe timethat the defendant committed the crime and the time where he wasasked to point him outat the preliminary hearing. (Sexton, supra, 485 Pa. at p. 23.) By contrast, in the instant case Jesus wasable to identify appellantat the field show-up, which was conducted only two hoursafter the attack. At that point appellant had already received the benefit of onereliable intervening 23 identification procedure. Staging a lineup the day of the preliminary hearing, a full two monthsafter the attack, would not have yielded a more objective identification under the circumstances presented here. In the case at bar, appellant chose not to exercise his right to challenge ~ the denial of his motion through application for a writ of mandate at a time whena pretrial lineup would have had evidentiary value. Given that appellant’s post-judgmentassertion ofhis rightto a pretrial lineupis untimely under Evans ’s own terms,and that he has no adequate remedy on appeal, the forfeiture doctrine should apply. Notwithstanding appellant's claims to the contrary (BOMat pp. 10-14), such a holding would no more contravenethe legislative scheme governing appellate rights than any other instance where this Court has applied a forfeiture rule. The Sexton court did not consider whether a defendant should be limited to challenging the denial of such a motion bypretrial writ in those instances where an intervening identification has been made; however,it illustrates the problematic nature of fashioning a remedy on appeal when thatis the case. Underthe rule respondent proposes, a defendantin appellant’s circumstances would not find himself without recourse. Though he may not challenge the denial of his motion for a pretrial lineup on direct appeal, he maystill challenge any intervening identification on groundsthat it was impermissibly suggestive, and that it gave rise to a very substantial likelihood ofirreparable misidentification in violation of his federal due process rights. The denial of a motion fora pretrial lineup wouldat that point be subsumedbythe inquiry addressing the overall reliability of the identification evidence that was presentedattrial. Here, appellant contended below that the showup wassuggestive (1 RT 3-4), and he continues to make the same assertion on appeal (BOM at pp. 3, 27); however, he never made the appropriate objection or motion to suppress and so he has forfeited that claim as well. (Cf. People v. 24 Lawrence (1971) 4 Cal.3d 273, 275, fn. 1 [“Identification evidenceis properly challenged on Wade-Gilbert grounds by meansofa pretrial motion to suppressor by a timely objection at the time the evidenceis offeredattrial’’].) . Evenifhe has preserved that claim,it lacks merit. An identification maybe so unreliable that it violates a defendant's right to due process under the Fourteenth Amendment. (Mansonv. Brathwaite (1977) 432 U.S. 98, 104-107 [97 S.Ct. 2243, 53 L.Ed.2d 140]; Neil v. Biggers (1972) 409 U.S. 188, 196-199 [93 S.Ct. 375, 34 L.Ed.2d 401].) In order to determine whether the admission ofidentification evidence violates a defendant’s right to due process of law, a reviewing court considers: (1) whetherthe identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself wasnevertheless reliable underthetotality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspectat the time of the offense, the witness’s degree ofattention at the time of the offense, the accuracyofhis or her prior description of the suspect, the level of certainty demonstratedat the time of the identification, and the lapse of ~ time betweenthe offense andtheidentification. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) Appellant bears the burden of demonstrating that an extrajudicial identification procedure was unreliable. (Ibid; People v. Carter (2005) 36 Cal.4th 1114, 1164.) “ “The question is whether anything caused [appellant] to “stand out” from the others in a way that would suggestthe witness should select him.’ ” (People v. Cunningham, supra, 25 Cal.4th at p. 990 [quoting People v. Carpenter (1997) 15 Cal.4th 312, 367 (superseded bystatute on anotherpointas stated in Verdin v. Superior Court, supra, 43 Cal.4th at p. 1106.)].) The identification of a single eyewitnessis sufficient to establish appellant’s guilt even if the witness does not confirm the identification in court. (People v. Boyer (2006) 38 25 -Cal.4th 412, 480.) In the context of a witness’s pretrial identification of a defendant, even a single person showupis not inherently unfair. (People v. Ochoa (1998) 19 Cal.4th 353, 413; see also Manson v. Brathwaite, supra, 432 U.S.at p. 105 [‘‘The ‘admission of evidence of a showup without more does not violate due process’ ”] (quoting Neil v. Biggers, supra, 409 U.S.at p. 198).) Becausethis rule is intended to avert an unfairtrial rather than an unfair identification, an unnecessarily suggestive identification procedure doesnot, ofitself, require exclusion of tainted identification evidence, muchless constitute reversible error. (Manson v. Brathwaite, supra, 432 U.S. at pp. 106, 110-114.) “Reliability is the linchpin in determining the admissibility of identification testimony. ... Ud. at p. 114.) A conviction based upon eyewitness identification will be set aside only if the identification procedure was so impermissibly suggestive as to giverise to a “very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384 [88 S.Ct. 967, 19 L.Ed.2d 1247].) An appellate court reviews independently trial court’s ruling that a pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609.) Asfactors supporting the suggestive nature of the showup identification, appellant adverts to the fact that at least one suspect was handcuffed, and that the prosecutor speculated it waslikely thatall five suspects weresimilarly restrained. (BOMat p. 27.) Given the circumstances, where the suspects had been apprehended only two hours after the attack and appellant was in possession of a knife, it was notatall unusual that he and his companions would be handcuffed. Appellant was not the only manstanding before the victim, and courts have held that even where a small numberof individuals are handcuffed, seated in the back of a patrol car, and surroundedbypolice officers, a field show-up is not unduly 26 suggestive. (See, e.g., Stovall v. Denno 388 U.S. 293, 295, 302 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (overruled on another groundin Griffith v. _ Kentucky, supra, 479 U.S. at p. 314); In re Richard W. (1979) 91 Cal.App.3d 960, 969-970; People v. Craig (1978) 86 Cal.App.3d 905, 914.) Whatis more,all three defense attorneys cross-examined the witnesses extensively concerning their ability to see the perpetrators at the time of the crime, the circumstances surroundingthe field showup, and the reliability of that identification procedure generally. (2 RT 53-69, 73-92, 100-107, 113-119, 124-125, 148-162.) They also gave those issues strong emphasis in their closing arguments (5 RT 647-653, 664-675, 679-688.) Wherea defendant has had the opportunity to so test doubtful identification evidence duringtrial, there is no due process violation. “Counsel can both cross-examinethe identification witnesses and argue in summation as to factors causing doubtsas to the accuracyofthe identification — including referenceto [ ] any suggestibility in the identification procedure .. . .” Mansonvy. Braithwaite, supra, 432 U.S. at pp. 113-114, fn. 14, see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1155. Astherightto a pretrial lineup exists only prior to the in-court receipt of identification evidence, that right must be timely asserted, and the value of a pretrial lineup disappears following a confrontation between the complaining witness and the defendant at preliminary hearingortrial, the application ofa forfeiture rule in appellant’s case would be neither inappropriate nor unforeseen. And because a defendant wouldstill be able to challenge the reliability of the identification evidence on direct appealor in a writ of habeas corpus, application of the forfeiture rule would work no unfairness. 27 D. Even If This Court Determines That Appellant Has Preserved His Claims, The Trial Court Did Not Abuse Its Discretion When It Denied His Motion For A Pretrial Lineup Even if appellant’s claimsare not forfeited, the trial court did not abuseits discretion whenit denied his motion for a pretrial lineup because there was no reasonable likelihood of a mistaken identification. During the attack, Jesus had the opportunity to observe his assailants as they got out of, and returnedto, the car. (1 RT 6-7; 2 RT 31-35, 57-60, 75, 78-82.) Jesus testified that as he ran he looked back “a couple of times,” and he had the opportunity to see the faces of his assailants. (2 RT 61, 80.) After he stopped running, Jesus could see his attackers returning to their cars from a distance of half a block. At that point, he was able to see that they were carrying at least one black bat. (2 RT 35, 40, 62-63, 88-89, 93-94.) The show-up occurred while it wasstill daylight, and the car from which Jesus viewed the suspects was parked directly in front of them. (2 RT 45-46, 184-186; 3 RT 289.) He was no more than 35 away from the 5 men, he indicated that he had a clear view, and he did not wear corrective lenses. (2 RT 82, 122.) Jesus wasable to identify Pasillas as the “man with the knife,” and Sanchez as the last man to get out of the red car. (2 RT 49; 3 RT 292, 294.) He also offered that one of the suspects had not beenatthe scene of the attack. (2 RT 51.) Asofficers arrived at the house on Wightman,Pasillas and another man ran inside. Pasillas was discovered hiding in his bedroom, sweating profusely, with visible abrasions anddried blood onhis head and neck.(1 RT 7; 2 RT 182, 233, 255.) Officers recovered two bats that had recently been spray-painted black from the yard of the house where they detained appellant. (1 RT 7; 2 RT 179-183, 233-234.) Though Jonathan was unsure as to his identification, he picked appellant out of the many photographic arrays he was shown.(3 RT 345-346, 349, 359.) 28 Whatis more,andasthe trial court observed (1 RT 9-10), an additional! lineup would have done nothing to “resolve”the identification issuefor the jury in light of the fact that appellant had already been positively identified at the showup. Sinceit cannot besaidthe trial court’s ruling wasarbitrary orirrational, or that it fell outside the bounds of reason, appellant fails to establish the denial of his motion constituted an abuse of discretion. II. IF THIS COURT FINDS THE TRIAL COURT ABUSED ITS DISCRETION, THE ERROR MUST BE EVALUATED UNDER THE WATSON’ STANDARD OF REVIEW Appellant argues that any error is properly reviewed underthe Chapmanstandard of prejudice, and that the Court of Appeal recognized that proposition. (BOMat p. 21.) Because Evansarosein the contextof a writ, it had no occasion to review for prejudice.] The Court of Appeal did not hold that Chapman wasthe appropriate standard; it merely assumedit was.” As previously discussed, the only federal due process right Evans identified wasthe right to reciprocal discovery as required by Wardius. Since appellant was deprived of a discovery right understate law only,if this Court finds the court below did abuseits discretion in denying appellant’s motion, the error should be reviewed under Watson. This Court should therefore seek to determine whetherthere is a reasonable probability that appellant wouldhaveobtained a differentresult at trial had a pretrial lineup been conducted. > People v. Watson (1956) 46 Cal.2d 818 (Watson.) ° Respondent made the same assumption in its supplemental briefing (SRB at p. 2). Upon further consideration, respondent has concluded that Evans survived the passage of Proposition 115 because pretrial lineup is authorized under Penal Code section 1054.4, and not because a defendant has a federal due process right to that procedure. 29 The evidence against appellant was considerably stronger than he makesit out to be. (BOMat pp. 25-29.) Aside from the evidence already detailed above, the record reveals that appellant was in the front yard of a house located only a few blocks from the scene of the attack when he was apprehended, seated in a chair that was etched with East San Diego gang graffiti, and in possession of a knife. (2 RT 172, 204-205, 213, 226-231.) Jurors also heard extensive evidence regarding appellant’s ties to, and history with, the East Side gang generally. (3 RT 406-413, 424-425.) Appellant’s observation that the jurors requested a readback of Jesus’s testimony (BOMatpp. 27-28)is irrelevant. Appellant merely speculates that this was a sign of their uncertainty as to the identification evidence conceming him, when it is equally possible that they may have been focused on the identification evidence as it pertained to his codefendants. Even if appellant’s jurors actually had concerns regardingthe reliability of appellant’s identification, they would have goneto the weight of the evidence only, and his jurors ultimately resolved the issue adversely to him. Asthe high court has said, “We are content to rely upon the good sense and judgment of Americanjuries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measureintelligently the weight of identification testimony that has some questionable feature.” (Mansonv. Brathwaite, supra, 432 U.S.at p. 116.) And evenif this Court were to apply the Chapmanstandard of review, there is no possibility that the error contributed to appellant’s verdict, in light of the fact that neither witness identified him at either his preliminary hearing orhis trial. Appellant contends that he was nonetheless prejudiced by the lack of a pretrial lineup as the prosecutor was thereby in a position where he could arguethat the victims failed to identify the defendants because oftheir fear, and not because oftheir inability to do so. (BOM at 30 pp. 23-25.) Appellant’s claim fails. In the first instance, the prosecutor did not draw this argumentout of thin air. Both Jesus and Jonathantestified that they feared they wouldbe killed if they were to cooperate as witnesses, and that they had personal knowledge of peoplein their neighborhood who had been murderedasthe result of their testimony. (2 RT 44, 52, 146-147; 3 RT 282, 350.) Appellant reasons that the jury might have been swayedbythe results of a pretrial lineup becauseit could be conductedin a police station while the victims stood behind a one-way mirror. Appellant believes that the victims’ failure to identify him under circumstances where their anonymity waspreserved would have successfully refuted the prosecutor’s argument and exposed the weaknessesin the identification evidenceto the jury. (BOMatp. 25.) Appellant’s contentions must be rejected. Even assuming that Jesus and Jonathan would havefailed to identify appellant, the prosecutor would still have been able to make the same argument. The victims did not enjoy “anonymity” under the circumstancesofthis case. They lived in a neighborhoodthat was controlled by the East Side gang, and a short distance from the house where the defendants were first detained. (2 RT 94, 163, 226-227; 5 RT 544.) Appellant andhis confederates had a clear view of Jesus, and they certainly would have known,orat the very least would have learned duringtrial, that it was he who hadidentified them during the pretrial lineup. Appellantfails to persuade, in light of the fact that neither witness identified him at both his preliminary hearing andtrial, that the jury’s verdict would have been affected by the knowledgethat Jesus had also failed to identify him during pretrial lineup. Jesus successfully identified appellant before he was asked to make an in-court identification, and that procedure involved no substantial likelihood of a mistaken identification. Appellant merely sought the opportunity to avail himself of a second 31 pretrial procedure as an additional test of his accuser’s ability to identify him. The court below wasnot constrained to grant that request under the showing madebyappellant, andits denial cannot have prejudiced him underany standard. CONCLUSION Forall the foregoing reasons, this Court should affirm the judgment below in its entirety. Dated: January 15, 2010 EAS:ep $D2009702673 80423337.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General ERIC A. SWENSON Deputy Attorney General Attorneysfor Plaintiffand Respondent 32 CERTIFICATE OF COMPLIANCE Icertify that the attached Respondent’s Brief on the Merits uses a 13 point Times New Romanfont and contains 10,079 words. Dated: January 15, 2010 EDMUND G. BROWN JR. Attorney General of California ERIC A. SWENSON Deputy Attorney General Attorneysfor Plaintiffand Respondent AMENDED DECLARATION OF SERVICEBY U.S. MAIL& ELECTRONIC SERVICE Case Name: People v. Mena No.: _$173973 - COA No. D052091 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 yearsofageor older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On January 15, 2010, I served the attached [Respondent’s Brief on the Merits] by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows:: Bonnie Dumanis John P. Dwyer District Attorney Attorney at Law Hall ofJustice 601 Van Ness Avenue, Suite E-115 330 West Broadway San Francisco, CA 94102 San Diego, CA 92101 Attorney for Appellant (2 copies) Clerk, Court of Appeal Fourth Appellate District, Div. One 750 B Street, Suite 300 San Diego, CA 92101 Mike Roddy, Executive Officer San Diego Superior Court Attn: Hon. Bernard Revak 220 West Broadway San Diego, CA 92101 and furthermore declare, I electronically served a copy of the above documentfrom the Office of the Attorney General’s electronic notification address (ADIEService@doj.ca.gov) on January 15, 2010 to Appellate Defender’s , Inc’s electronic notification address, eservice-criminal@adi- sandiego.com I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on January 15, 2010, at San Diego, California. Cathey Pryor £ Lfly, 7 Lee4