Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA053852 Curtis B. Rappe, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Marlon Osorio appeals the judgment entered following his conviction by jury of two counts of first degree murder and ten counts of attempted willful, deliberate and premeditated murder arising out of four separate shooting incidents. (Pen. Code, §§ 187, 664/187.) As to each count, the jury found Osorio acted for the benefit of a criminal street gang and that he personally discharged a firearm, causing death or great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) The jury found true a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and, with respect to the two counts of murder, found Osorio intentionally killed the victim while actively participating in a criminal street gang (§ 190.2, subd. (a)(22)).
Subsequent unspecified statutory references are to the Penal Code.
Osorio claims he was identified based on unduly suggestive pretrial identification procedures, he should have been provided counsel at a live lineup, and the trial court should have excluded from evidence his admission of gang membership and his possession of a knife at the time of his arrest.
We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Vanowen Street shooting.
On August 6, 2006, at approximately 9:00 p.m., Jose Urquilla went to his cousin’s apartment complex on Vanowen Street to lay some cable. Urquilla telephoned his cousin from the gate at the entrance to the complex. While waiting for the gate to open, Urquilla saw two male Hispanics dressed in gang attire attempting to climb the wall around the parking area. When the gate opened, Urquilla drove behind the building and parked. As Urquilla removed tools from his van, he saw the same two individuals walk past his van and approach a Chevrolet Impala occupied by an individual talking on a cell phone.
The two Hispanic males also walked past Urquilla’s cousin, Cesar Guardado, as Guardado went to his car to get tools. Guardado heard a gun loading, turned and saw that one of the males had a semiautomatic handgun. Guardado called a warning to Urquilla, then ran into the building. Urquilla turned and saw that one of the males, whom he identified as Osorio, had a black semiautomatic that resembled the gun in evidence. Urquilla heard the males ask the individual in the Chevrolet where he was from and immediately thereafter heard gunshots.
The males ran toward a DMV building east of the apartment complex. A security camera on the DMV building captured video of an individual in a white shirt running to a red vehicle at 9:06 p.m.
On August 30, 2006, and on September 12, 2006, Urquilla was shown three photographic lineups but he made no identifications. On October 3, 2006, Detective Martin Mojarro showed Urquilla two photographic lineups. Urquilla identified Osorio in People’s No. 44. Urquilla wrote Osorio “looks somewhat [like] the guy that did the shooting....”
Each time Urquilla was shown a photographic lineup, he was read the following admonition: “[I]n a moment I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hairstyles, beards and mustaches may be easily changed. Also, photographs may not always depict the true complexion of a person. It may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photo or any other differences in type or style of the photographs. When you have looked at the photographs tell me whether or not you see the person who committed the crime. Do not tell other witnesses that you have or have not identified anyone.”
Osorio also identified Osorio as the shooter at a live lineup on October 23, 2006, at the Men’s Central Jail.
Prior to viewing the live lineup, Urquilla read and initialed a document containing eight instructions that stated: “[Y]ou are going to view a lineup of six similar appearing individuals.” “The suspect... involved in your crime may or may not be in this lineup.” “[Y]ou are under no obligation to identify anyone as a suspect.” “[T]he purpose of this lineup is to eliminate any innocent persons as well as identifying the person, [or] persons, responsible.” “[D]o not talk to each other during the lineup.” “[I]f you have a question after the lineup is completed[, ] raise your hand and an officer will contact you; otherwise, please mark your document as appropriate and an officer will collect it.”
At the preliminary hearing, Urquilla testified Osorio “might be” the individual with the gun. Urquilla testified Osorio’s hair was longer at the preliminary hearing than it was on the night of the shooting and Osorio wore glasses at the preliminary hearing. At trial, Urquilla identified Osorio as the shooter and testified he got a better look at the individual with the gun than the other individual. Urquilla indicated Osorio’s hair was longer at trial than it was on the night of the shooting.
Guardado attended the live lineup but did not identify anyone. Guardado testified he did not get close to the assailants, he did not get a good look at their faces, it was nighttime and the parking area was relatively dark. Both were 5 feet 6 inches or 5 feet 7 inches and had short hair.
The Vanowen Street shooting occurred in territory claimed by the Barrios Van Nuys gang. A baseball cap with the letters NY was found inside the Chevy Impala. Members of Barrios Van Nuys frequently wear Yankees attire.
Nelson Ramirez, the individual seated in the Chevrolet, suffered five gunshot wounds, three of which were fatal. Ramirez was not a gang member.
2. The Collins Street shooting.
On August 7, 2006, at approximately 9:45 p.m., Jose Valencia, Elizabeth Alvarez, Miguel Castro and Sonia Medina were standing in front of an apartment building at 18449 Collins Street. They noticed a red Honda Civic with tinted windows pass their location twice. The driver of the Honda stared at Valencia, who was dressed in gang attire and had a shaved head but was not a gang member. After the Honda passed the second time, it stopped down the street from their location and two males dressed in gang attire got out.
The Honda parked in front of Lorenzo Delgado, who was sitting on a wall on Collins Street. Two males got out of the back seat and told the driver to wait for them around the corner. One of the males asked Delgado why he was looking at them. Delgado believed the two males were Salvadoran based on their accent. The males walked toward the apartment building where Valencia and his friends were standing. Delgado noticed one of the males had a dark colored weapon on his back in his waistband.
The two males approached Valencia and one of them, identified in court by Valencia as Osorio, asked where Valencia was from and then reached behind his back. Medina testified the same male also yelled “M.S.” Castro, Medina and Alvarez ran to one gate; Valencia ran to another gate. Valencia heard three gunshots and was struck in the back by the third shot. He was hospitalized for three days. After the shots were fired, the two males ran toward Reseda Boulevard.
On September 12, 2006, Valencia looked at three photographic lineups but was unable to identify anyone. On October 4, 2006, Detective Scott Crowe showed Valencia two photographic lineups. From People’s exhibit No. 84, Valencia selected Osorio’s picture and wrote on the form, “I think this is the guy who hit me up and shot me.” Before Valencia looked at the photographic lineups, Detective Crowe read him an admonition. Valencia also identified Osorio at a live lineup on October 23, 2006. Valencia testified Osorio’s hair was longer at trial than it was on the night of the shooting when his head was shaved.
Delgado did not identify Osorio at the preliminary hearing or at trial. At the preliminary hearing, before Osorio entered the courtroom, Detective Crowe showed Delgado a photographic lineup, People’s exhibit No. 84, from which Delgado identified Osorio as the individual who had the gun. Delgado wrote, “No. 5 has a resemblance to the ones that exited the car on the day of the shooting on Collins Street. He looks as one of the ones who... took part in the shooting.”
Medina was shown three photographic lineups on September 12, 2006. Before she looked at the photographic lineup, she was read a photographic lineup admonition. Medina identified an individual in one of the photographic lineups. However, Osorio’s picture was not in the lineup. Medina was unable to identify Osorio in court.
Castro and Alvarez were shown photographic lineups but were unable to identify anyone.
Numerous expended bullets but no expended casings were recovered at the scene of the Collins Street shooting. Los Angeles Police Officer Dennis Cunningham testified the scene of the Collins Street shooting was “surprisingly” well illuminated and is within the territory claimed by the Reseda Southside gang.
3. The Hartland Street shooting.
On August 7, 2006, at approximately 10:00 p.m., Feliciano Lazaro, Jose Cruz, Jesus Gonzales and others were talking in front of Lazaro’s apartment building on Hartland Street. Lazaro had his back to the street. When Lazaro saw his roommate’s expression change, Lazaro turned and saw three Hispanic males, one of whom was Osorio. Osorio, who was about 39 feet from Lazaro, was shooting a black handgun at Lazaro’s group. Lazaro saw Osorio fire one shot and heard four more. As Lazaro ran from the scene, he was shot in the back and the right leg. Lazaro spent three days in the hospital.
Cruz testified he heard someone say, “where are you from?” Cruz turned and saw a gun being held by a male Hispanic four feet from him. Cruz heard a total of approximately five shots. Cruz ran after the second shot was fired. Cruz admitted he associated with the gang Canoga Park Alabama, which is the predominant gang in the area.
Alfredo Garcia heard gunshots, looked out the window of his apartment and saw two male Hispanics running. Garcia went outside and chased the two individuals to Vanowen Street and Kelvin Avenue. When Garcia turned the corner, he saw a red 1994 Honda Civic “speeding down the street.”
Jesus Gonzales suffered three gunshot wounds, one of which was fatal.
The police recovered four expended nine-millimeter casings at the scene of the shooting. Video footage taken by a camera mounted on a retail shop near the scene showed a red vehicle entering a parking lot at 9:54:20 p.m. Two people exit the vehicle and one appears to reach into the vehicle. Later, an individual appears to run to the car.
October 4, 2006, Detective Crowe showed Lazaro a photographic lineup People’s exhibit No. 84. Lazaro circled two photographs, one of which was Osorio’s, and wrote: “[P]icture No[s]. 3 and 5 are the ones that look more to the people I remember seeing and shooting at us.” At a live lineup on October 23, 2006, Lazaro identified Osorio as the shooter. Lazaro testified it was easier to identify Osorio at the live lineup because he was able to see his entire body and, after viewing Osorio at the live lineup, he felt more confident about his identification. Lazaro denied he selected Osorio at the live lineup because he had seen him in the photographic lineup. Lazaro also identified Osorio at the preliminary hearing and at trial.
At trial, Cruz testified Osorio “could be” the gunman. On September 13, 2006, Cruz was shown photographic lineups and circled two photographs in one lineup and told the detective these two individuals looked like the shooter and his companion. However, the two individuals circled by Cruz were filler photographs. On October 3, 2006, Cruz selected Osorio in People’s exhibit No. 84 but told the detective he was not sure. Cruz indicated he previously had seen Osorio in the neighborhood but did not think he was a gang member. Cruz admitted at trial he did not wish to testify because he “run[s] with gangs, too.” The Friday before he testified, Cruz saw Osorio enter the courtroom and recognized Osorio’s cheeks as similar to the shooter’s. Cruz told the attorneys present in the courtroom that Osorio could be the shooter. Cruz said Osorio’s hair was longer but otherwise he was the guy he remembered. Cruz denied that when Osorio was brought into the courtroom, Cruz told his father Osorio was the shooter. However, when Detective Crowe asked about Cruz’s statement to his father, Cruz admitted he said, “that’s the guy.
4. The 7-Eleven Shooting.
On August 14, 2006, at approximately 1:30 a.m., Doris Macedo and five friends drove to a 7-Eleven in an Explorer to purchase drinks after leaving a nightclub. They saw two males standing outside a red Honda with tinted windows in the 7-Eleven parking lot and decided to go elsewhere because they “didn’t get a good vibe....” As they left the 7-Eleven, one of the two males shot at the Explorer. One of the bullets struck Macedo in the back. Macedo suffered a collapsed lung and was in the hospital for about a month.
The police found one expended casing and one live round in the 7-Eleven parking lot. Macedo refused to speak to a police officer at the hospital on the night of the shooting.
On September 13, 2006, Detective John Macchiarella showed Macedo photographic lineups. Macedo made no identifications but indicated the shooter was a male Hispanic with a shaved head, 5 feet 8 inches tall and approximately 150 pounds. On October 4, 2006, Macchiarella showed Macedo a photocopy of exhibit No. 44. Macedo drew a rectangle around Osorio in photograph No. 6 and wrote, “[m]ay look like the person who may have shot me but I am not very sure....” Before showing Macedo the photographic lineup, Macchiarella read her an admonition and she signed an acknowledgment form. Macedo did not identify Osorio at trial and claimed she pointed out more than one individual in the photographic lineup. Although Macedo made arrangements to attend a live lineup and the preliminary hearing, she attended neither. Macedo claimed she did not want to go because she was not sure of her identification. Macedo admitted several of her family members are involved in the Blythe Street gang.
Detective Macchiarella testified the 7-Eleven is within the territory claimed by Blythe Street gang. Before Macedo testified at trial, she told Macchiarella she feared for her safety, she did not want Osorio to see her and said, “it’s a small world out there.”
5. The arrest of Osorio; subsequent interviews; search of his home.
On September 19, 2006, at approximately 5:40 p.m., an officer of the Los Angeles Police Department stopped a Honda driven by Osorio for expired registration. Because Osorio did not have a driver’s license, the officer decided to impound the Honda. Osorio’s passenger was not identified and was released at the scene.
During an inventory search of the Honda, a loaded Springfield Armory XD handgun was found on the front passenger floorboard partially concealed under a black jacket and a knife with a seven or eight-inch blade and a five-inch handle was found under the driver’s seat. Osorio was wearing a belt with a chrome M on the buckle. An envelope in the console of the Honda had what appeared to be Mara Salvatrucha gang writing on it.
Los Angeles Police Officer Todd Costello interviewed Osorio at the Van Nuys police station after his arrest on September 19, 2006. Osorio’s hair was short and he had an M and an S tattooed on his chest in four inch high letters. Osorio was wearing a belt with an M on the buckle. In a search of Osorio’s residence later that day, Costello found another belt with an S on the buckle. Costello also found a baseball cap at Osorio’s home inside of which was written M.S. 13, referring to Mara Salvatrucha, and F.L.S. which stands for Fulton Street Locos, a clique of Mara Salvatrucha. A gang gun is a gun of low quality that is passed from member to member. Guns that gang members keep for themselves are usually of higher quality.
On the morning of September 20, 2006, Los Angeles Police Detective Lucy Diaz interviewed Osorio with her partner, Detective Bancroft. Osorio indicated his girlfriend owned the Honda but only he drove it. Osorio initially denied gang membership but later admitted he had been a member of Mara Salvatrucha for about five years, he was initiated in El Salvador and he belonged to the Fulton Street clique. Osorio denied the gun found in the car was his. However, Osorio’s girlfriend told Diaz the black jacket found in the car belonged to Osorio
6. The live lineup.
Detective Crowe testified that, at a live lineup on October 23, 2006, Urquilla, Guardado, Valencia and Lazaro were kept apart from each other and sat in the front row of a large dark auditorium. The individuals in the lineup were on an elevated stage behind glass with bright lights on them.
Detective Mojarro indentified a photograph of the individuals as they stood in the live lineup. The witnesses were given instructions on their participation in the lineup and each was given a clipboard with a copy of the witness admonition card. The witnesses did not speak among themselves in Mojarro’s presence and were instructed not to speak to each other.
7. Ballistic evidence.
A firearms examiner testified the nine-millimeter handgun recovered from Osorio’s car is a “high end” firearm that was relatively new. Two of the bullets recovered from the body of Nelson Ramirez were fired from this gun. Four expended cartridges recovered at the scene of the Hartland Street shooting and an expended cartridge found at the scene of 7-Eleven shooting were fired from this weapon. Four bullet fragments found at the scene of the Collins Street shooting could not be connected to the firearm. However, an expended bullet recovered at that crime scene was fired by either a 380 or a nine-millimeter handgun.
8. Testimony of the gang expert.
Los Angeles Police Officer Ralph Brown, a member of the gang enforcement unit, testified Mara Salvatrucha is a criminal street gang that was formed by Salvadorans to avoid being victimized by other Hispanic gangs. The gang consists almost exclusively of Salvadorans. Committing crimes, referred to as “putting in work, ” enhances the status of the gang and the gang member. Mara Salvatrucha is involved in extortion, weapon possession, murder, attempted murder, robbery and felony vandalism. Mara Salvatrucha is not allied with any other gang and its rivals include Barrio Van Nuys, Reseda Southside, Canoga Park Alamaba and Blythe Street. Members of Mara Salvatrucha live all over the Valley although they primarily claim the area around Fulton Avenue between Sherman Way and Oxnard Street. There are approximately 70 individuals in the Fulton Locos clique. On August 18, 2005, a member of the Mara Salvatrucha gang was killed in the 18400 block of Collins Street in Reseda Southside territory.
Brown opined Osorio was a member of the Fulton Locos clique of Mara Salvatrucha based on the gang writing in a baseball cap found in his home, the M and S belt buckles he owned, and the gang writing, loaded handgun and large knife found in the vehicle Osorio was driving at the time of his arrest. Additionally, Osorio admitted to Detective Diaz that he has been a member of Mara Salvatrucha for five years and he became a member in El Salvador. The large knife found in Osorio’s car is consistent with membership in Mara Salvatrucha as large knives and machetes are prevalent in El Salvador and Mara Salvatrucha members “brought that culture here to Southern California.”
Based on a hypothetical question grounded in the facts of the underlying offenses, Brown opined the instant offenses were committed for the benefit of Mara Salvatrucha. The fact the individuals victimized in several of the shootings were not members of the gang in whose territory the shooting occurred does not alter Brown’s opinion. When members of Mara Salvatrucha enter the territory of a rival gang to commit a crime, “[i]f they can’t find a rival gang member[, ] they will find someone who lives in that rival area.”
CONTENTIONS
Osorio contends the identifications by Urquilla, Valencia, Delgado, Lazaro, Cruz and Macedo should have been excluded as tainted by unduly suggestive pretrial identification procedures, the failure to provide counsel rendered the identifications made at the live lineup inadmissible, Osorio’s statements to Detective Diaz were admitted in violation of his constitutional rights, and the trial court abused its discretion in admitting evidence of the large knife found in Osorio’s car.
DISCUSSION
1. Osorio has failed to demonstrate the pretrial identification procedures were unduly suggestive.
a. General principles.
Due process requires the exclusion of identification testimony if (1) the identification procedures used were unnecessarily suggestive and (2) the resulting identification was unreliable. (People v. Avila (2009) 46 Cal.4th 680, 698; People v. Yeoman (2003) 31 Cal.4th 93, 123; People v. Cunningham (2001) 25 Cal.4th 926, 989.) In general, a pretrial identification procedure will be deemed impermissibly suggestive only if it suggests to the witness, before he or she makes an identification, which person the police suspect. (People v. Carpenter (1999) 21 Cal.4th 1016, 1045.)
Even if the procedures are found to be unduly suggestive, a witness’s identification testimony is only inadmissible if the “ ‘ “ ‘totality of the circumstances’ ” ’ suggests ‘ “a very substantial likelihood of irreparable misidentification.” ’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 168.) In determining reliability under the totality of the circumstances, the court should consider such factors as “ ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’[s] degree of attention, the accuracy of the witness’[s] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation.’ [Citations.]” (People v. Kennedy (2005) 36 Cal.4th 595, 610, disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
The defendant bears the burden of demonstrating the identification procedure violates due process. (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990; People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If the identification procedure is not unduly suggestive, inquiry into the due process claim ends. (People v. Ochoa (1998) 19 Cal.4th 353, 412.)
“[W]e independently review the trial court’s ruling regarding whether... a pretrial identification procedure was unduly suggestive.” (People v. Gonzalez (2006) 38 Cal.4th 932, 943; People v. Kennedy, supra, 36 Cal.4th at pp. 608-609.)
b. Osorio’s arguments.
At trial, Osorio unsuccessfully objected to the identifications made from the photographic lineups and at the live lineup as impermissibly suggestive.
On appeal, Osorio contends the photographic lineups shown to Urquilla, Valencia, Delgado, Lazaro, Cruz and Macedo in October of 2006, People’s exhibits No. 44 and 84, were unduly suggestive and likely resulted in unreliable identifications. He further claims the identifications made by Urquilla, Valencia and Lazaro at the live line-up on October 23, 2006, were the result of the tainted photographic lineups. Thus, the photographic lineup identifications, the live line-up identifications and the in-court identifications based on the prior identifications should have been excluded.
Osorio argues exhibit No. 84 was unduly suggestive because the individuals depicted have significantly different head and facial shape, lip size and shape, and skin coloration. Osorio notes three individuals in the photographic lineup have distinctly narrow faces and pointed chins and another has an unusually rounded head and face whereas Osorio has a rectangular face and chin. The only individual with a head and face similar to Osorio’s is the individual to Osorio’s right. However, his skin tone is distinctly lighter than Osorio’s, as is the skin tone of the other individuals in the lineup. Osorio claims he is the only person in exhibit No. 84 who does not appear to have any distinguishing characteristics, thereby making Osorio stand out by the process of elimination. One individual has a round head and face with no facial hair, three individuals have distinct mustaches, even though none of the witnesses described the perpetrator as having a mustache, and the man in the bottom left corner has an angular face and a very large Adam’s apple, something none of the witnesses described. The individual to Osorio’s right, in addition to having light skin tone, has a very thick neck and a lazy eye, again characteristics described by none of the witnesses.
With respect to exhibit No. 44, which was shown to Macedo and Valencia, Osorio observes the individual to Osorio’s left has a long head and large open eyes. Two other individuals have triangular heads and high foreheads; two others have wide faces. One has distinctly narrow eyes, large lips, a mustache and no hair on his chin. Osorio argues he stands out from these individuals because the other five are unlike Osorio in appearance and each has at least one distinguishing characteristic the witnesses did not describe. Thus, the witnesses were left with Osorio as the most likely suspect.
Osorio further claims the witnesses should have been shown a sequential display of photographs rather than a simultaneous display of a sixpack photographic lineup because research has shown that individuals presented with a simultaneous display feel compelled to choose the individual who most closely resembles the perpetrator. Thus, a sequential presentation of photographs reduces the risk of misidentification.
Osorio also complains there was a significant risk the officers who showed the photographic lineups to the witnesses gave subliminal clues to the witnesses because the officers were aware the gun found in Osorio’s vehicle had been linked to the shootings. To avoid this possibility, the California Commission on the Fair Administration of Justice recommends the officer presenting a photographic lineup not be aware of the identity of the suspect.
Osorio additionally contends the final display of a single photographic lineup in October of 2006, almost two months after the witnesses previously viewed multiple photographic lineups, emphasized the importance of the final lineup and suggested the police now had a suspect in custody and any individual the witness previously had identified was not the actual suspect.
With respect to the live lineup, Osorio asserts the witnesses who identified him at the live lineup, Urquilla, Valencia and Lazarro, identified him approximately 20 days earlier in a photographic lineup. Because Osorio was the only person presented in the live lineup who also appeared in the photographic lineup, the identifications made at the live lineup were inherently unreliable and should not have been admitted at trial.
Osorio concludes the trial court should have granted his motion to exclude the identification evidence.
c. The identification procedures used in this case were not unduly suggestive.
We have reviewed the exhibits in question and find they are not unduly suggestive. All of the men in the lineups are Hispanic and they have similar hairstyles, facial hair and appearance. They all appear to be the same age and roughly the same size. All of the individuals in People’s exhibit No 44 and all but one of the individuals in People’s exhibit No. 84 have facial hair. The lineups are not unduly suggestive merely because Osorio’s appearance differs slightly from the rest of the lineup participants. Indeed, lineups in which there are similar or greater disparities than those cited by Osorio routinely have been upheld. (See People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096 [live lineup not unduly suggestive where beards of other participants were thicker than the defendant’s]; People v. Wash (1993) 6 Cal.4th 215, 245, fn. 11 [photo lineup not unduly suggestive where all the individuals except defendant had straight or stringy blond hair and defendant’s face appeared larger and more distinct than the others]; People v. Johnson (1992) 3 Cal.4th 1183, 1217-1218 [photo lineup not unduly suggestive where only the defendant wore jail clothing]; People v. DeSantis, supra, 2 Cal.4th at p. 1222 [photo lineup not unduly suggestive where perpetrator wore a red jacket and only the defendant wore a red shirt in photographic lineup and only defendant’s picture featured a dark background].)
“Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him. [Citation.]” (People v. Carpenter, supra, 15 Cal.4th at p. 367.) None of the factors cited by Osorio caused him to stand out from the other individuals depicted in such a way as to suggest the witnesses should select him. “Where photographs in a lineup are of males of the same ethnicity and ‘generally of the same age, complexion, and build, and generally resembling each other, ’ and where the accused’s ‘photograph did not stand out, and the identification procedure was sufficiently neutral, ’ the lineup is not impermissibly suggestive. [Citations.]” (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1082.)
Osorio’s claim other individuals in the photographic lineups had characteristics that were not described by any of the witnesses does not alter this result. Inclusion of people in the lineups who had characteristics not described by the witnesses did not make Osorio stand out in comparison and did not cause the photographic lineups to be unduly suggestive.
Regarding Osorio’s claim the witnesses should have been shown photographs sequentially rather than simultaneously, photographic lineups repeatedly have been upheld as an appropriate identification technique as long as the procedure is not unnecessarily suggestive. (See, e.g., People v. Avila, supra, 46 Cal.4th at pp. 697-700; People v. Lawrence (1971) 4 Cal.3d 273, 277-280; People v. Carter (1975) 46 Cal.App.3d 260, 265; see also People v. Phan (1993) 14 Cal.App.4th 1453, 1461-1462 [display of five social photographs depicting more than 20 individuals not inappropriate].) Moreover, given that the majority of the witnesses in this case failed to select anyone in the photographic lineups initially shown to them, the record belies Osorio’s claim the simultaneous display of six photographs suggested to the witnesses an individual should be selected from the photographic lineup.
Urquilla made no identification until he was shown a seventh photographic lineup. Valencia looked at five photographic lineups but selected Osorio’s photograph only in one. Lazaro looked at two photographic lineups and made two selections from one photographic lineup and none from the other. Macedo looked at four photographic lineups and only selected Osorio from the last. Although Medina made an incorrect identification from one of the earlier photographic lineups, she did not identify Osorio in the photographic lineup in which he appeared and did not identify him at trial. Only Cruz made an incorrect identification in the photographic lineups shown to him in September of 2006 and thereafter identified Osorio as the gunman in the final photographic lineup, although he disclaimed the identification at trial.
Regarding Osorio’s claim the investigators may have been biased or may have given the witnesses subliminal clues, Osorio identifies no evidence that supports his assertion. Rather, the record indicates the officers who showed the witnesses the photographic lineups admonished the witnesses the perpetrator may or may not be depicted in the photographic lineup, hairstyles, beards, and mustaches may be easily changed, and photographs may not depict the true complexion of a person. Absent any evidence that investigator bias adversely affected the identifications, this claim amounts to speculation.
With respect to Osorio’s assertion the witnesses likely considered the single photographic lineup shown to them in October of 2006 more important than those they previously had viewed, we note Valencia and Lazaro were shown two photographic lineups on the date they identified Osorio. Putting this point aside, there is no reason to suspect any of the witnesses put more emphasis on photographic lineups they were shown in October of 2006. Nothing about the circumstances surrounding the final photographic lineup displays suggested the police had a suspect in custody. In any event, merely knowing a suspect was in custody would not have assisted the witnesses to select Osorio’s photograph in the final photographic lineups. (See People v. Johnson, supra, 3 Cal.4th at p. 1218.) Also, numerous witnesses failed to make identifications in earlier lineups and Osorio does not point to any evidence that suggests they felt differently when they viewed the lineup containing his picture.
Regarding Osorio’s complaint he was the only person depicted in the photographic lineups who was present at the live lineup, this fact does not render the live lineup per se unduly suggestive. (People v. Cook (2007) 40 Cal.4th 1334, 1355; People v. DeSantis, supra, 2 Cal.4th at p. 1224; United States v. Davenport (9th Cir. 1985) 753 F.2d 1460, 1463.) Repeat showings of a suspect are analyzed under the same standards set forth above to determine whether an identification procedure is unduly suggestive. (See Simmons v. U.S. (1968) 390 U.S. 377, 385-386 [19 L.Ed.2d 1247]; People v. Yeoman, supra, 31 Cal.4th at p. 124; People v. Blair (1979) 25 Cal.3d 640, 660-661 [rejecting a similar argument where witnesses were shown four sets of photographs, three of which contained defendant’s picture].)
Further, the record dispels any claim the live lineup was unduly suggestive. The witnesses sat in every other seat in the front row of a large auditorium and were admonished the suspect in their case might not be in the lineup, they were under no obligation to identify anyone, the purpose of the lineup was to eliminate innocent people as well as to identify those responsible, and they were not to speak to each other during the lineup. Detective Mojarro testified he did not see any of the witnesses speak to each other. The fact Guardado failed to make an identification at the line lineup after looking at the photographic lineups suggests none of the participants stood out in a way that suggested he should be selected.
Based on the facts and circumstances of this case, we conclude Osorio has not met his burden of proving the pretrial identification procedures were unduly suggestive. Consequently, the inquiry into Osorio’s due process claim ends without addressing the second step of whether the identification was independently reliable. (See People v. Cunningham, supra, 25 Cal.4th at p. 989; People v. Ochoa, supra, 19 Cal.4th at p. 412.) However, even assuming Osorio has met his burden for the sake of discussion, we would conclude the in-court identifications were nevertheless reliable under the totality of the circumstances.
d. Even assuming the identification procedures were unduly suggestive, the identifications of Osorio were reliable.
Urquilla saw Osorio and his companion climbing the wall around the Vanowen Street parking lot and saw them again when they walked past his van. Although it was nighttime, Urquilla had sufficient light to see Ramirez in the Chevrolet and to lay cable. Thus, Urquilla had an adequate opportunity to observe the gunman, the area was not too dark so as to prevent Urquilla’s observation of the gunman, and Urquilla testified he got a better look at the person with the gun.
Valencia saw the red Honda pass his location twice. He made eye contact with the driver of the vehicle and he watched as Osorio and his companion exited the Honda and approached Valencia’s location. Osorio then came within eight feet of Valencia and asked Valencia where he was from. The police officer who investigated the shooting testified the area was well illuminated.
Valencia’s identification of Osorio was corroborated by Delgado. The red Honda parked in front of Delgado on Collins Street, enabling Delgado to see Osorio and his companion at close range. Also, one of the males asked Delgado why he was looking at them, indicating Delgado had an excellent opportunity to observe the suspects. Immediately before the preliminary hearing, Delgado identified Osorio in People’s exhibit 84 as the man with the gun. Although Delgado could not identify Osorio at trial, this likely was attributable to Osorio change in appearance.
In the Collins Street shooting, Lazaro saw Osorio from a distance of approximately 39 feet and the area was well lit. Lazaro circled two photographs in the photographic lineup shown to him as resembling the person who shot at him, one of which was Osorio’s. Lazaro identified Osorio at the live lineup and explained it was easier to identify Osorio at live lineup because he was able to see his entire body as opposed to just his face. Lazaro denied that he selected Osorio at the live lineup because he had seen him in the photographic lineup.
Cruz testified at trial that Osorio “could be” the gunman. Although Cruz selected Osorio’s picture in People’s exhibit No. 84, he told the detective only that he previously had seen Osorio in the neighborhood. Although Cruz’s identification testimony likely had little impact on the result, it provided corroboration for Lazaro’s identification.
With respect to the 7-Eleven shooting, Macedo saw Osorio standing outside a red Honda and, based on his attitude in the parking lot, Macedo and her group decided to leave without alighting from their vehicle. When she viewed the photographic lineup on October 4, 2006, she said Osorio’s photograph “may look like a person who may have shot me but I am not very sure.” Although Macedo did not attend the live line-up or the preliminary hearing and failed to identify Osorio at trial, her hesitation likely was based on her family’s affiliation with a gang. Indeed, she refused to talk to police officers immediately after the shooting even though she had been seriously injured.
In sum, each witness who identified Osorio had an opportunity to view him under circumstances that showed their identifications were reliable. Additionally, Urquilla, Valencia and Lazaro identified Osorio at trial even though he changed his appearance significantly after his arrest. Although the witnesses to the shootings uniformly described the shooter as having a shaved head and Osorio’s head was shaved when he was arrested, by the time of the preliminary hearing and the trial, which took place three years after the shooting, Osorio had long hair and he wore glasses at the preliminary hearing. Thus, even if the pretrial identification procedures were unduly suggestive, the identifications made by Urquilla, Valencia and Lazaro were independently reliable.
Further, other evidence connected Osorio to the shootings. All the offenses were committed by an individual associated with a red Honda with tinted windows. The gun found in Osorio’s car was used in the Vanowen Street, Hartland Street and 7-Eleven shootings and it could have been used in the Collins Street shooting. A police officer testified the gun, which was of high quality, was more likely to be Osorio’s personal handgun than a gun passed around among gang members. The shooter identified himself as a Mara Salvatrucha gang member in the Collins Street shooting and all of the shootings took place in the territory of gangs that are Mara Salvatrucha rivals. The victim in the Vanowen Street shooting likely was mistaken for a Barrio Van Nuys gang member because he was wearing a Yankees cap. The victim in the Collins Street shooting, Valencia, likely was mistaken for a Reseda Southside gang member because of his appearance and the location of the shooting. In the Hartland Street shooting, Castro admitted he, in fact, was an associate of the Canoga Park Alabama gang. The 7-Eleven shooting occurred in territory claimed by the Blythe Street gang.
Given these circumstances, the identifications were reliable even if the identification procedures employed by the police were unduly suggestive.
2. Failure to provide counsel at the live lineup.
a. Background.
After Osorio’s arrest for possession of a handgun, he was represented by Attorney Michael Gottlieb. The gun possession charge was dismissed at the preliminary hearing on October 5, 2006. However, the trial court found Osorio in violation of probation and sentenced him to time in County Jail. On October 20, 2006, a notice of lineup was faxed to Attorney Gottlieb and a voicemail message regarding the lineup was left for Mr. Gottlieb. Osorio was not represented by counsel at the live lineup on October 23, 2006, and Osorio did not waive the presence of counsel.
At a pretrial motion to suppress evidence of the identifications made at the live lineup, Osorio argued he improperly had been denied the assistance of counsel. Osorio claimed the live lineup was “post complaint” because the possession of a handgun charge could have been refiled. The trial court denied the motion, finding the right to counsel attaches only after charges have been filed and, at the time of the live lineup, murder charges had not yet been filed.
b. Osorio’s appellate contention.
Osorio contends the failure to provide counsel rendered the identifications made at the live lineup inadmissible. Osorio argues he was entitled to counsel at the lineup because he was being held in custody on a probation violation based on possession of the handgun found in his car at the time of his arrest. Osorio concludes that, because the People cannot establish the in-court identifications had an origin independent of the live lineup, the identifications were inadmissible and, absent these identifications, there was insufficient evidence to support the convictions.
c. The trial court properly denied Osorio’s motion to exclude the identifications made at the live lineup.
Under the Sixth Amendment to the United States Constitution, a defendant has a right to have counsel present at a live lineup held after criminal proceedings have commenced. (United States v. Wade (1967) 388 U.S. 218, 236-237 [18 L.Ed.2d 1149]; Gilbert v. California (1967) 388 U.S. 263, 272-273 [18 L.Ed.2d 1178]; People v. Lynch (2010) 50 Cal.4th 693, 710; People v. Cook, supra, 40 Cal.4th at pp. 1352-1353.) When this rule is violated, evidence of identifications made at the lineup must be excluded unless the prosecution establishes, by clear and convincing evidence, the in-court identification had an origin independent of the illegal lineup. (United States v. Wade, supra, 388 U.S. at pp. 240-241.)
However, there is no right to counsel at a lineup before the accused has been formally indicted. (Kirby v. Illinois (1972) 406 U.S. 682, 690-691 [32 L.Ed.2d 411].) Here, Osorio had not been charged with the instant offenses at the time of the lineup. He therefore had no federal constitutional right to counsel. Although Osorio remained in custody on a violation of probation based on his possession of the gun, the live lineup was unrelated to the violation of probation. A formal charge on an unrelated offense does not give the defendant the right to counsel at a lineup for the uncharged offense. (People v. Cook, supra, 40 Cal.4th at pp. 1352-1353 [defendant in custody on a parole hold had no right to counsel at a live lineup on an unrelated matter]; see also People v. Webb (1993) 6 Cal.4th 494, 527 [right to counsel is “offense-specific”].)
Thus, the trial court properly denied the motion to exclude evidence of the identifications made at the live lineup.
3. Admission of Osorio’s statements to Detective Diaz.
a. Background.
Outside the presence of the jury, Los Angeles Police Officer Gerald Chavarria testified that on September 19, 2006, at approximately 5:40 p.m., he interviewed Osorio at the Van Nuys station. Chavarria’s partner, Officer Todd Costello, also was present. After Chavarria advised Osorio of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], Osorio indicated he understood his rights and was willing to speak to Costello. Osorio appeared calm and cooperative and granted the officers permission to search his home.
The next morning, Los Angeles Police Detective Lucy Diaz reviewed the Miranda admonition Osorio had received the previous day and spoke to him in an interview room in the Van Nuys station with her partner, Detective Bancroft. Diaz reminded Osorio of his previous Miranda waiver and asked if he would like to speak to her. Diaz did not advise Osorio of his Miranda rights but relied upon the previous waiver. Osorio agreed to speak to Diaz and, in the ensuing interview, Osorio admitted membership in Mara Salvatrucha.
Osorio sought to exclude his statements to Diaz, claiming the waiver of his constitutional rights was inadequate. The trial court found Chavarria’s testimony credible and that Diaz continued “the same conversation that was begun... the evening of the day before and she did remind the defendant of his Miranda waiver the night before and asked him if he wanted to continue. [¶] So it appears to me that... he understood... and continued to talk....”
b. Osorio’s contention.
Osorio contends the totality of the circumstances do not support a finding he knowingly and voluntarily waived his right to remain silent before he spoke to Detective Diaz. Osorio notes the two interviews were at least 12 hours apart and were conducted by different officers. He claims the presence of “entirely different personnel during the second interview, together with a shift in the nature and scope of the questioning” would have been intimidating. Although Detective Diaz reminded Osorio of his prior waiver, Osorio had no prior familiarity with the criminal justice system and he was not from this country.
Osorio claims the People cannot demonstrate the erroneous admission of evidence was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 510.) Because his statements to Diaz were the most convincing evidence of his gang membership at the time of the shootings, Osorio concludes the error, at minimum, requires reversal of the gang special circumstance and the criminal street gang enhancements.
c. Relevant principles.
Constitutional safeguards against compelled self-incrimination require that custodial interrogation be preceded by an advisement the accused has the right to remain silent and the right to the presence of an attorney. (Miranda v. Arizona, supra, 384 U.S. at pp. 478-479.) Where a valid Miranda warning has been given, it is unnecessary to give a readvisement before a custodial interrogation is resumed as long as “ ‘ “the subsequent interrogation is ‘reasonably contemporaneous’ with the prior knowing and intelligent waiver.” [Citations.]’ ” (People v. Williams, supra, 49 Cal.4th at p. 434; People v. Smith (2007) 40 Cal.4th 483, 504; People v. Mickle (1991) 54 Cal.3d 140, 170.) The factors to be considered in determining whether readvisement is necessary prior to a subsequent interrogation held after an earlier valid Miranda waiver include: “1) the amount of time that has passed since the initial waiver; 2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that defendant subjectively understands and waives his rights. [Citation.]” (People v. Mickle, supra, at p. 171.)
When reviewing a trial court’s decision on a motion to suppress a defendant’s statements on the basis of a Miranda violation, “we defer to the trial court’s resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. [Citation.] Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement[s were] obtained in violation” of Miranda. (People v. Gurule (2002) 28 Cal.4th 557, 601.)
d. No readvisement necessary on the facts presented.
The fact pattern presented in this case is entirely consistent with other cases that have held a second interview of an accused to be reasonably contemporaneous with an earlier interview at which the accused made a valid Miranda waiver. In Williams, the second interview took place 40 hours after the first, it was conducted by one of the previous interrogators in the same location, the defendant had experience with the criminal justice system and evinced no reluctance to be interviewed. (People v. Williams, supra, 49 Cal.4th at pp. 434-435.) In Smith, the second interrogation occurred less than 12 hours after the first, it was conducted by the same officers in the same location, the officers asked if the defendant remembered the Miranda warnings although no reminder was given, and the defendant was familiar with the criminal justice system. (People v. Smith, supra, 40 Cal.4th at pp. 504-505.) Mickle found readvisement unnecessary where 36 hours had elapsed and two intervening interviews had occurred, noting the defendant was still in custody and he was interviewed by the same detectives, albeit in a different location, he was reminded of the prior conversations, although not the waiver, he was familiar with the justice system, and there was nothing to indicate he was mentally impaired. (People v. Mickle, supra, 54 Cal.3d at p. 171.)
Here, Osorio properly was advised and waived his Miranda rights in the initial interview. He was interviewed again approximately 12 hours later. Although the second interview was conducted by different officers, both interviews occurred in an interview room at the Van Nuys station and both addressed Osorio’s gang membership and the gun found in his car. When Diaz reminded Osorio he previously had been advised of his rights, Osorio acknowledged he had, said he understood and indicated he would speak to the officers. Although Osorio’s past experience with law enforcement was not extensive, he was familiar with the criminal justice system in that he was on probation for possession of a dangerous weapon.
Under these circumstances, the trial court properly concluded the second interview was reasonably contemporaneous with the first and no readvisement was required.
In any event, even putting aside Osorio’s admissions to Detective Diaz, substantial evidence indicated Osorio was an active member of Mara Salvatrucha. Osorio had M and S tattooed on his chest in letters four inches high, he was wearing an M belt buckle at the time of his arrest and a matching S belt buckle was found in his home. There was gang writing on an envelope found in his car and inside a baseball cap found in his home. A large knife found under the driver’s seat of his car was consistent with Mara Salvatrucha membership and, during the Collins Street shootings, Osorio yelled “M.S.” This evidence demonstrated that, at the time Osorio committed the instant offenses, he was an active gang member. Thus, any error in the admission of Osorio’s statements regarding gang membership must be seen as harmless.
4. No error in the admission of evidence of the knife found in Osorio’s car.
At trial, the prosecutor requested permission to introduce evidence of the large knife found in Osorio’s car to support the gang expert’s opinion Osorio was an active member of Mara Salvatrucha. The prosecutor indicated the expert would testify Mara Salvatrucha gang members frequently have knives handy for ready use. “It is a calling card [that relates] to their roots back home where they carry such large knives.” Defense counsel objected the evidence was unduly prejudicial and unnecessary in that there was ample other evidence to prove Osorio’s gang membership. The trial court ruled the evidence admissible but cautioned the prosecutor to “[b]e careful how you argue.”
On appeal, Osorio contends admission of evidence indicating he possessed a large knife at the time of his arrest was far more prejudicial than probative and should have been excluded under Evidence Code section 352. He claims the knife showed only a propensity to commit violent crime. Thus, its admission constituted impermissible character evidence in violation of Evidence Code section 1101, subdivision (a), which precludes evidence of a person’s character or trait of character offered to prove his or her conduct on a specified occasion. (People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393; People v. Henderson (1976) 58 Cal.App.3d 349, 360.) Further, there was no evidence a knife was used in any of the charged offenses, thereby distinguishing cases involving weapons admitted into evidence on the theory they might have been the weapon employed by the accused. (See, e.g., People v. Cox (2003) 30 Cal.4th 916, 956-957, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Also, the evidence was cumulative to other evidence of gang membership and its slight probative value on the issue of gang membership was outweighed by the prejudicial suggestion Osorio had a propensity to commit violent crime. Given that a firearm also was found in the car, the jury could only conclude Osorio had a predisposition to commit violent acts. Osorio concludes the error requires reversal of the judgment.
Osorio’s arguments are not persuasive.
The trial court has broad discretion in determining whether to exclude relevant evidence on the ground its probative value is substantially outweighed by the probability admission of the evidence will create substantial danger of undue prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Where evidence of a weapon is relevant to an issue at trial other than the defendant’s propensity to possess weapons, the evidence is admissible. (People v. Cox, supra, 30 Cal.4th at pp. 956-957; People v. Smith (2003)30 Cal.4th 581, 613-614 [evidence defendant owned a derringer and ammunition admissible to show state of mind when he shot the victim].)
Here, Osorio’s possession of a large knife was not offered to show his propensity to possess weapons or his predisposition to commit violent acts but to prove he was an active member of Mara Salvatrucha. As the gang expert explained, possession such a knife is a hallmark of Mara Salvatrucha membership. Proof of active gang membership was an element of the gang special circumstance allegation and was relevant to proof of the criminal street gang enhancements.
Also, the prosecutor did not make improper use of the evidence and did not argue it showed Osorio was a bad person or a dangerous individual. Rather, the prosecutor argued only that possession of the knife supported a finding Osorio was an active member of Mara Salvatrucha. Given that the charged crimes involved shootings, there was no danger the jury might think the knife showed involvement in any of the charged offenses and Osorio’s possession of a loaded handgun rendered his simultaneous possession of a knife somewhat innocuous. Thus, evidence of Osorio’s possession of the knife cannot be seen as unduly inflammatory or prejudicial.
Given these circumstances, the trial court reasonably could conclude the prejudicial effect of the evidence did not substantially outweigh its probative value. We also reject Osorio’s attempt to cast this contention as a violation of the right to due process. The ordinary application of the rules of evidence generally does not implicate a defendant’s federal constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035.)
In the event, any error was harmless. Osorio’s possession of the knife was a small portion of the evidence that indicated Osorio was an active member of a criminal street gang and the knife received only one passing reference during closing argument. Under any standard of review, exclusion of the evidence would not have altered the result.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J.ALDRICH, J.