Metropolitan News-Enterprise


Wednesday, May 20, 2009


Page 1


Court of Appeal Clarifies Rules on Court-Ordered Lineups




An order denying a motion to require a pretrial lineup is subject to review only by writ, and will be upheld unless it is both an abuse of discretion and deprives the defendant of evidence he cannot otherwise obtain, the Fourth District Court of Appeal ruled yesterday.

Div. One affirmed Joaquin Mena’s conviction on two counts of assault with a deadly weapon and one count of carrying a concealed dirk or dagger. San Diego Superior Court Judge Bernard Revak placed Mena on probation after jurors found him guilty of assaulting two teenagers in a gang-related incident.

Testimony showed that the two boys, identified as Jesus C. and Jonathan F., were walking home when two cars stopped as they were crossing an intersection. One of the men got out and asked the boys “How’s the East Side treating you?” in an apparent reference to the East Side gang, whose territory they were in.

Jesus said he replied “I don’t bang”—meaning he was not in a gang, to which the man responded by swinging his fist. When the boys ran, other men—wielding baseball bats and knives—got out of the cars and gave chase.

The boys eventually escaped, but Jonathan was hit with a bat and was hospitalized. Jesus was quickly interviewed by police and said the assailants were Hispanic males in their teens or early 20s, some with shaved heads.

Police subsequently seized Mena, who generally met Jesus’ description, and found a steak knife in his pocket.

A few hours after the attack, police brought Jesus to the house where Mena was found, and conducted a curbside lineup. Jesus identified Mena and three other men as being involved in the attack.

About a month later, police showed Jonathan a series of photo arrays. He said Mena looked like one of his attackers, although he could not be sure, but did not identify anyone else.

Mena’s attorney moved to require Jesus to attend a live pretrial lineup, a procedure authorized by Evans v. Superior Court (1974) 11 Cal. 3d 617. He argued that there was a reasonable likelihood that the curbside identification was mistaken, given the minimal opportunity Jesus had to view the attackers before running away, the conditions of the curbside lineup, the lack of specificity in his original statement to police, and the similarity in appearance among the several attackers.

Revak denied the motion, finding that there was no reasonable likelihood that any mistaken identification would be addressed by a lineup.

Justice Alex McDonald, writing for the Court of Appeal, questioned whether Evans remains good law under Proposition 115, adopted in 1990, which limits criminal discovery to that which is authorized by statute or mandated by the federal Constitution. 

Pretrial lineups, the justice noted, are not provided for by statute, nor did Evans specify that there is a federal constitutional right to one. McDonald explained, however, that the panel would assume that Evans is still controlling since attorneys for both parties said so in supplemental briefing.

Since no appellate panel has reversed the denial of an Evans motion in a published opinion, McDonald wrote, the issue of whether such a denial is appealable has never been resolved. “Because of the uniquely ephemeral nature of the rights conferred by Evans, we conclude the requirement of timely pursuit of a lineup includes timely review of an adverse ruling by writ proceedings, and failure to pursue writ relief waives the claim of error,” the justice wrote.

In any event, the justice went on to say, there was no reversible error. Since Jesus was unable to identify Mena either at trial or at the preliminary hearing, McDonald explained, “the jury convicted Mena despite having the benefit of testimony substantially identical to the evidence Mena claims he was deprived of by the erroneous ruling on his Evans motion,” so the denial of the motion was harmless beyond a reasonable doubt.

The case is People v. Mena, D052091.


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