P. v. Pasillas

Filed 11/24/09 P. v. Pasillas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN PASILLAS et al.,
Defendants and Appellants.
D053109
(Super. Ct. Nos. SCD205930)
APPEALS from a judgment of the Superior Court of San Diego County, Peter L.
Gallagher, David M. Gill, Judges, and Bernard E. Revak (Retired Judge of the San Diego
Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Affirmed.

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I.
INTRODUCTION
A jury found Adrian Pasillas and Jorge Lopez guilty of two counts of assault with
a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 (counts 1 & 2). The jury also found
that both Pasillas and Lopez committed counts 1 and 2 for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)). The court sentenced Pasillas to eight years in prison,
consisting of the middle term of three years on count 1, plus an additional term of five
years for the gang enhancement. The court imposed an identical eight-year sentence as to
count 2, and ordered that the sentence on count 2 run concurrently with the sentence to
count 1. The trial court placed Lopez on formal probation for a period of three years.
On appeal, Pasillas claims that the trial court erred in denying his motion to
suppress. Pasillas contends that the police illegally detained him during their
investigation into the charged offenses, and that the trial court erred in refusing to
suppress all evidence stemming from the illegal detention. Lopez claims that the trial
court erred in denying his motion for a pretrial lineup. In addition, Lopez claims that
there is insufficient evidence to support the jury's findings of guilt on the charged
offenses and on the related gang enhancements, and that the trial court erred in denying
his motion for a new trial on the ground that the jury's verdicts were contrary to the
evidence. We affirm the judgment as to both defendants.
1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.

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II.
FACTUAL BACKGROUND
A. The assaults
On April 13, 2007, 15-year-old Jesus C. (Jesus) and 17-year-old Jonathan F.
(Jonathan) were walking across a street in the City Heights neighborhood of San Diego.
A red car and a white car stopped near the intersection. There were several men inside
each of the two cars. A man got out of the red car and moved quickly toward Jesus and
Jonathan. As the man approached Jesus and Jonathan, he asked them, "How's the East
Side treating you?" Jesus knew that he and Jonathan were in an area that the East Side
gang claimed as their territory, and thought that the man's question indicated that the man
was a member of the San Diego gang. Jesus replied, "I don't bang," signifying that he
was not involved in any gang.
The man responded by swinging his fist at Jesus. The man's fist came within
approximately two to three inches of Jesus. Jesus and Jonathan began running.2 At least
two of the men from the cars chased Jesus. One of the men attempted to stab Jesus with a
knife, and yelled, "Stop running or I'm going to shank you." Jesus ran about a block
before the men stopped chasing him. After the chase, Jesus saw a man who was holding
a black baseball bat run back to one of the cars.
Several men chased Jonathan as well. One of the men was carrying a baseball bat
and a second man was armed with a knife. The man with the bat hit Jonathan in the head,
2 At some point before Jesus began to run, all of the other men from both cars also
got out of the cars.

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knocking him to the ground. Shortly thereafter, the attackers went back to the cars in
which they had arrived and left the scene.
B. The investigation
A woman who lived near the scene of the attack called the police at approximately
5:00 p.m. that evening. A police officer responded to the scene and interviewed Jesus.
Jesus told the officer that the assailants were Hispanic males in their teens to twenties,
and that some of them had shaved heads. Jesus also described the cars in which the
assailants had been travelling.
At approximately 6:00 p.m. that evening, San Diego Police Officer Nestor
Hernandez, together with his partner, drove around the area where the assaults had
occurred, looking for possible suspects or witnesses. Near a residence that was
approximately two to three blocks from the scene of the assault, Officer Hernandez saw a
red car that matched Jesus's description of one of the cars used in the attack. Officer
Hernandez also noticed four Hispanic males in front of the residence. As Officer
Hernandez pulled his police car up to the residence, two of the males ran inside.
Officer Hernandez briefly contacted the two males who remained outside the
residence—codefendant Joaquin Mena, and Lopez. The men were sitting in chairs on
which East Side gang graffiti was written. Officer Hernandez knocked on the door of the
residence. A woman answered the door and permitted Officer Hernandez to enter the
house and look for the men who had run inside. In a bedroom, Officer Hernandez found
Pasillas hiding in a bed, under the covers, pretending to be asleep. Pasillas was sweating
profusely. He had abrasions on his face and dried blood on his face, neck and shirt.

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Officer Hernandez also encountered codefendant Ricardo Sanchez3 and a man
named Robert Ferguson inside the residence. Officer Hernandez recognized Ferguson as
one of the men who had initially been in front of the residence, and who had run inside.
While at the residence, police found a steak knife in Mena's pocket and two freshly
painted black baseball bats. Officer Hernandez detained Lopez, Pasillas, Mena, Sanchez,
and Ferguson.
Police brought Jesus to the residence. Jesus identified Mena, Lopez, Pasillas and
Sanchez as having being involved in the incident. Jesus said that Ferguson had not been
involved. As to Pasillas, Jesus said, "Yes, he was the one with the blade." As to Lopez,
Jesus said, "Yes, he was there too."
Approximately one month later, police showed Jonathan four arrays of
photographs. Each contained one photograph of one of the suspects whom Jesus had
identified—Pasillas, Mena, Lopez, and Sanchez—as well as photographs of five other
men. Jonathan was unable to identify anyone in the arrays that contained the
photographs of Pasillas, Lopez, and Sanchez. In the series that contained Mena's
photograph, Jonathan pointed to Mena's photograph and said, "I think he was in the
Focus, but I'm not sure."4
3 During his testimony, several of the witnesses referred to Sanchez by the alias
Jesus Valle.
4 At trial, Jonathan testified that some of the assailants had arrived at the scene in a
red Ford Focus.

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III.
DISCUSSION
A. The trial court did not err in denying Pasillas's motion to suppress
Pasillas claims that the trial court erred in denying his motion to suppress. Pasillas
argues that the police illegally detained him on the day of the incident, and that the trial
court should have suppressed all evidence stemming from the illegal detention.
1. Standard of review
" 'The standard of appellate review of a trial court's ruling on a motion to suppress
is well established. We defer to the trial court's factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.' " (People v. Sardinas (2009) 170 Cal.App.4th 488, 493.) "We
may sustain the trial court's decision without embracing its reasoning. Thus, we may
affirm the superior court's ruling on [Pasilla's] motion to suppress if the ruling is correct
on any theory of the law applicable to the case. . . ." (People v. McDonald (2006) 137
Cal.App.4th 521, 529 (McDonald).)
2. Factual and procedural background
In July 2007, Pasillas filed a motion to suppress pursuant to section 1538.5.5
Under that section, a defendant may "move . . . to suppress as evidence any tangible or
5 The motion to suppress contained in the record does not bear a legible file stamp.
However, the motion is dated July 27, 2007. We assume that the motion was filed on or
about July 27.

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intangible thing obtained as a result of a search or seizure" (§ 1538.5, subd. (a)(1)), on
the ground that the search or seizure was unreasonable. (§ 1538.5, subd. (a)(1)(A), (B).)
In a memorandum in support of his motion, Pasillas provided a summary of the facts
pertaining to his detention on the day of the incident. Among other arguments, Pasillas
contended that law enforcement officers lacked reasonable suspicion to search and seize
him. Pasillas claimed that all evidence obtained as a result of the officers' unlawful
detention was inadmissible and should be suppressed.
The People filed a brief in opposition to Pasillas's motion. After providing a
summary of the facts relating to the detention, the People argued, "The location near the
crime scene, proximity in time, resemblance to the description given by the victims,
presence in [East Side] gang territory[,] and the flight from police—all these facts gave
officers reasonable suspicion to detain . . . Pasillas." The People argued further, "Once
the officers observed [Pasillas's] attempt at hiding, appearance of recently being involved
in a fight and the dried blood on his head, officers would have been remiss in their duties
had they not detained [Pasillas], pending the curb[side] lineup."6
The People further argued that Pasillas's detention was not "unduly prolonged."
The People noted that the curbside showup was conducted less than an hour after the
6 Although the People refer to the procedure by which Jesus identified Pasillas as a
"lineup," it is more properly referred to as a "showup." In People v. Dampier (1984) 159
Cal.App.3d 709 at pages 712-713, the court explained the difference between the two
procedures as follows: "A 'lineup' is a relatively formalized procedure wherein a suspect,
who is generally already in custody, is placed among a group of other persons whose
general appearance resembles the suspect. . . . An in-the-field showup, on the other hand,
is generally an informal confrontation involving only the police, the victim and the
suspect."

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officers first encountered Pasillas. The People asserted that during this time, the police
had to obtain Jesus's parents' permission to allow him to attempt to make the
identification, and had to transport Jesus to the residence at which Pasillas was detained.
The trial court held a hearing on the motion. At the hearing, Officer Hernandez
testified regarding the circumstances of his detention of Pasillas. Officer Hernandez
testified that on April 13, 2007, at approximately 5:00 p.m., he received a radio call
regarding an alleged assault that had occurred near the intersection of Van Dyke Street
and Polk Street. According to the radio call, several Hispanic males with either bald
heads or short hair, claiming to be East Side San Diego gang members, had beaten a male
with baseball bats, hands, and fists. According to the call, some of the suspects were
wearing dark clothing, and others were wearing light clothing. Officer Hernandez and
his partner responded to the area of the assault at approximately 6:00 p.m. that evening.
Officer Hernandez drove around the area in an attempt to locate possible witnesses or
suspects. He noticed four Hispanic males in the front yard of a house located
approximately five blocks from the scene of the assault. The house was located in an
area that was considered to be within the territory of the East Side San Diego gang.
Officer Hernandez stopped his police car in front of the residence. As he did so,
two of the men who had been in the front yard "took off running . . . ." The men ran
through the side door of the house. The other two men stayed in the front yard. One of
the men who remained outside was wearing a black shirt, and the other was wearing a
white shirt. Officer Hernandez and his partner walked up to a fence that surrounded the
yard and asked the two men who had remained in the yard whether the officers could

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speak with them regarding the assault. The men agreed. The officers then entered the
yard, and spoke briefly with the men. The men were sitting on wooden chairs. Officer
Hernandez noticed that references to the East Side San Diego gang were etched into the
chairs.
After speaking with the two men in the front yard, Officer Hernandez knocked on
the door of the residence. A woman named Karina Aguilar answered the door. Officer
Hernandez asked Aguilar if he could speak to the two men who had just run inside the
house. Aguilar responded that no one had come inside the house. Another man, later
determined to be Robert Ferguson, then came to the door. Officer Hernandez recognized
Ferguson as one of the men who had run inside the house. Officer Hernandez asked
Ferguson if he lived there, and Ferguson responded that he did not. Another man,
Ricardo Sanchez, came to the door and told Officer Hernandez that he lived at the house.
Officer Hernandez asked Aguilar if he could come inside the house to look for the men
who had entered the house. Aguilar agreed, stating, "Nobody came in here. But no
problem. Come on in and look around."
Upon entering the house, Officer Hernandez saw two women in the living room.
Aguilar walked to the door of one of the bedrooms in the house and said, "This is my
bedroom. Go ahead and take a look." Officer Hernandez walked into the bedroom and
saw someone lying on the bed, under several blankets and some clothing. Officer
Hernandez could see the persons' legs from approximately the calves to the feet. Officer
Hernandez said to the person, "Police Department . . . let me see your hands" at least
three times, but received no response. Another police officer then came into the room.

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Officer Hernandez pulled back the covers and recognized the man in the bed as
one of the two males who he had seen run inside the house earlier. The man, who Officer
Hernandez identified at the suppression hearing as Pasillas, was fully dressed and
sweating profusely. Pasillas had abrasions on his face and dried blood on the top of his
head. It appeared to Officer Hernandez that Pasillas may have recently been in a fight.
Officer Hernandez asked Pasillas if he was on probation or parole, and Pasillas responded
that he was on gang probation. Officer Hernandez then handcuffed Pasillas. Officer
Hernandez explained, "I detained him until we could determine his probation status. At
that point I had him go to the living room with everyone else so that we could secure the
rest of the residence in a safe manner."
After securing the residence, Officer Hernandez looked around inside and outside
the house. Officer Hernandez and another officer found two freshly painted black
baseball bats. There was an empty can of black spray paint next to the bats, and one of
the bats was wet to the touch. In addition, Officer Hernandez testified that police found a
knife in the possession of one of the men whom the officers had initially contacted in the
front yard.7
After hearing argument from Pasillas's counsel and the prosecutor, the trial court
denied the motion, ruling:
"Motion is denied. It appears to the court, based upon the testimony,
that the officers were involved in an active investigation, that the
suspects, the persons in the front yard, clearly came within the
7 It is not clear from Officer Hernandez's testimony precisely when the officers
found the knife.

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class—not the class but within the description of the potential
suspects. They went and Ms. Aguilar did give consent to come in.
In coming in, finding the defendant hiding in the bed, after a
discussion with him finding out he was on gang probation, and for
officer safety there was a detention, and I think subsequent
information that came to light justified the show-up. Therefore the
motion will be denied. . . ."
3. Governing law
"When a police officer has an objective, reasonable, articulable suspicion a person
has committed a crime or is about to commit a crime, the officer may briefly detain the
person to investigate. The detention must be temporary, last no longer than necessary for
the officer to confirm or dispel the officer's suspicion, and be accomplished using the
least intrusive means available under the circumstances. [Citations.]" (People v. Stier
(2008) 168 Cal.App.4th 21, 26-27 (Stier).) "Although circumstances short of probable
cause to arrest may justify an officer's investigative detention, a detention may not be
premised on mere curiosity, rumor, or hunch that the detainee is involved in criminal
activity. [Citation.] Instead, an investigative detention must be justified by specific and
articulable facts, measured by facts known to the officer at the time he or she detains the
suspect [citation], that make it objectively reasonable for an officer in a like position,
drawing on training and experience, to suspect (1) a crime has occurred or is occurring
and (2) the detainee is involved in that activity. [Citations.] If the facts known to the
officer at the time of the detention make the detention objectively reasonable, the officer's
subjective intent will not vitiate the detention. [Citations.]" (Giovanni B. v. Superior
Court (2007) 152 Cal.App.4th 312, 320 (Giovanni B.).)

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"The scope of the intrusion permitted during a detention will vary with the
particular facts and circumstances of each case and the prosecution has the burden of
establishing a detention was lawful. [Citation.] Handcuffing substantially increases the
intrusiveness of a detention and is not part of a typical detention. [Citation.]" (Stier,
supra, 168 Cal.App.4th at p. 27.) "Circumstances in which handcuffing has been
determined to be reasonably necessary for the detention include when (1) the suspect is
uncooperative; (2) the officer has information the suspect is currently armed; (3) the
officer has information the suspect is about to commit a violent crime; (4) the detention
closely follows a violent crime by a person matching the suspect's description and/or
vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or
flight; or (6) the suspects outnumber the officers. [Citation.]" (Id. at pp. 27-28.)
"[T]he length of a detention must be reasonably related in scope to the
circumstances which justified the interference in the first place." (People v. Brown
(1998) 62 Cal.App.4th 493, 499.) "Circumstances which develop during a detention may
provide reasonable suspicion to prolong the detention. [Citation.] . . . [T]he question is
whether the police diligently pursued a means of investigation reasonably designed to
confirm or dispel their suspicions quickly. [Citation.]" (People v. Russell (2000) 81
Cal.App.4th 96, 102 (Russell).)
4. Application
Pasillas claims that Officer Hernandez detained him in the absence of specific
articulable facts that would support a reasonable suspicion that he had been engaged in
the charged offenses. We disagree. Prior to detaining Pasillas, Officer Hernandez knew

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the following facts: The suspects in the gang assault that Officer Hernandez was
investigating had claimed to be East Side San Diego gang members. The residence was
near the crime scene and in East Side San Diego gang territory. Chairs that bore
references to East Side San Diego were located in front of the residence at which Pasillas
was detained. Officer Hernandez responded to the residence approximately an hour after
having received the call regarding the assault. Men who matched the description of the
suspects in the assault were in the front yard of the residence. Pasillas engaged in furtive
conduct by running inside the house, hiding under the covers on a bed, and failing to
respond to Officer Hernandez's repeated demands to show his hands. Pasillas's physical
appearance was consistent with having very recently participated in an assault in that he
was sweating profusely, and had abrasions on his face and dried blood on his head.
Pasillas admitted to Officer Hernandez that he was on gang probation. In light of these
facts, we conclude that Officer Hernandez had an objective, reasonable, articulable
suspicion that Pasillas had committed the charged offenses.8
We reject Pasillas's arguments that the detention was legally invalid because
Officer Hernandez did not act reasonably in handcuffing him and because the length of
the detention was excessive. Several circumstances supported Officer Hernandez's
decision to handcuff Hernandez. Pasillas acted in uncooperative manner by failing to
8 In light of our conclusion, we need not consider whether the detention was also
justified to ensure Officer Hernandez's safety. (McDonald, supra, 137 Cal.App.4th at
p. 529.) Further, in light of our conclusion that the facts known to Officer Hernandez
made the detention objectively reasonable, Officer Hernandez's subjective intent in
detaining Pasillas is not a basis for concluding that the detention was unreasonable. (See
Giovanni B., supra, 152 Cal.App.4th at p. 320.)

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respond to the officer's repeated demands to show his hands. In addition, Officer
Hernandez harbored a reasonable suspicion that Pasillas had recently participated in a
violent crime. Further, Pasillas had demonstrated that he was a flight risk by running
from the yard of the residence when the police officers arrived. Finally, there were a
number of other suspects located in or near the residence. Under these circumstances,
Officer Hernandez acted reasonably in handcuffing Pasillas. (Stier, supra, 168
Cal.App.4th at p. 27.)
With respect to the approximately one hour length of the detention, the "police
diligently pursued a means of investigation reasonably designed to confirm or dispel their
suspicions quickly," by arranging for a curbside showup. (Russell, supra, 81 Cal.App.4th
at p. 102.) Further the period of approximately one hour that it took for the officers to
arrange the curbside showup was not excessive, particularly in light of the fact that
during this hour, the police found incriminating evidence—freshly painted baseball
bats—that could reasonably have increased their suspicion that Pasillas had committed
the charged offenses. (Ibid.)
B. Lopez's claims
1. The trial court did not commit reversible error in denying
Lopez's motion for a pretrial lineup
Lopez claims that the trial court committed reversible error in denying his motion
for a pretrial lineup.
a. Factual and procedural background
On May 21, 2007, Lopez, moved for an order directing the People to arrange and
conduct a live physical lineup, as provided under Evans v. Superior Court (1974) 11

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Cal.3d 617 (Evans), to determine whether Jesus would identify Lopez as a participant in
the charged offenses. In an accompanying declaration, defense counsel stated that
eyewitness identification was a material issue in the case and asserted that there was a
reasonable likelihood that Jesus had misidentified Lopez at the curbside showup. In a
brief in support of his motion, Lopez contended that Jesus's curbside identification of
Lopez was "essentially . . . the People's entire case and theory against [him]." Lopez
further claimed that there were several circumstances that supported the conclusion that it
was reasonably likely that Jesus had misidentified Lopez at the curbside showup,
including that Jesus had only a minimal opportunity to observe the attackers, and that the
description he had provided to police of the attackers was vague.
The People opposed the motion, arguing that there was no reasonable likelihood
that Jesus had misidentified Lopez as a participant in the assaults, and that conducting a
lineup would substantially burden the court, the police, the prosecution, and the
witnesses.
On May 27, the trial court denied the motion, ruling that there was no reasonable
likelihood that there had been a mistaken identification that a lineup would resolve.
b. Governing law
In Evans, supra, 11 Cal.3d 617, the California Supreme Court considered whether
a defendant has a right to have the trial court order the People to arrange for police to
conduct a pretrial lineup at which eyewitnesses to a crime can attempt to identify the
defendant as the perpetrator of the crime. The Evans court stated:

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"We conclude . . . that due process requires in an appropriate case
that an accused, upon timely request therefor, be afforded a pretrial
lineup in which witnesses to the alleged criminal conduct can
participate. The right to a lineup arises, however, only when
eyewitness identification is shown to be a material issue and there
exists a reasonable likelihood of a mistaken identification which a
lineup would tend to resolve. [Fn. omitted.]
"The questions whether eyewitness identification is a material issue
and whether fundamental fairness requires a lineup in a particular
case are inquiries which necessarily rest for determination within the
broad discretion of the magistrate or trial judge. [Citations.] We do
not hold, accordingly, that in every case where there has not been a
pretrial lineup the accused may, on demand, compel the People to
arrange for one. Rather, as in all due process determinations, the
resolution here to be made is one which must be arrived at after
consideration not only of the benefits to be derived by the accused
and the reasonableness of his request but also after considering the
burden to be imposed on the prosecution, the police, the court and
the witnesses." (Evans, supra, at p. 625.)
c. Application
We assume for the purposes of this decision that a defendant may seek reversal of
a judgment on appeal on the ground that the trial court erred in denying a motion for a
pretrial lineup, pursuant to Evans.9 We further assume that the trial court in this case
abused its discretion in denying Lopez's motion for a pretrial lineup. However, for the
9 In People v. Mena (2009) 93 Cal.Rptr.3d 845, 850, review granted August 26,
2009, S173973 (Mena), in a prior appeal involving codefendant Mena, this court held,
"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." In light
of the Supreme Court's grant of review in Mena, we may not, and do not, rely on that
decision in this appeal. (Cal. Rules of Court, rules 8.1105(e), 8.1115(a).)

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reasons stated below, we conclude any such error was harmless beyond a reasonable
doubt.10
(i) Lopez's contentions as to prejudice
In his opening brief, Lopez argues that the trial court's denial of his motion for a
pretrial lineup was prejudicial because there was a "lack of any other evidence to connect
appellant Lopez to these crimes. . . ." In addition, Lopez claims that it is likely that Jesus
would not have identified him at a pretrial lineup, and that evidence of such inability to
identify him as a participant in the charged offenses would have had significant probative
value at trial. Lopez reasons:
"This is because the prosecution was able to argue to the jury that
part of the reason Jesus C. did not identify [Lopez] at trial, while he
did identify him at the showup, was because the incident had
occurred months earlier and his memory was not as clear at the time
of trial. [Citation.] If a live lineup had been conducted and
appellant Lopez had not been identified by the witnesses especially
by Jesus C. in this lineup the prosecution could not have made this
argument to the jury as the lineup would've been much closer in time
to the incident [than] was the trial."
In his reply brief, Lopez contends that the trial court's refusal to order a lineup was
prejudicial because the prosecutor asserted during closing argument that Jesus had not
identified Lopez at trial because Jesus was afraid to have Lopez see him make the
10 The parties have not cited, and we are not aware of, any citable authority
concerning the appropriate standard of prejudice to be applied in this context. In light of
the fact that the Evans court based its holding on federal constitutional principles (Evans,
supra, 11 Cal.3d at p. 625), we apply the Chapman v. California (1967) 386 U.S. 18, 24
standard of prejudice, which is applicable to claims of federal constitutional error.

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identification. According to Lopez, evidence that Jesus had failed to identify him during
an anonymous pretrial lineup would have "thwarted this argument."
Lopez argues that the proper remedy for the claimed error would be for this court
to reverse the judgment and direct the trial court on retrial to instruct the jury that Jesus
would not have identified Lopez in a pretrial lineup if one had been conducted.
(ii) Any error that the trial court may have committed
in denying Lopez's motion for a pretrial lineup was
harmless beyond a reasonable doubt
Even assuming that the jury should have received evidence that Jesus would not
have identified Lopez in a pretrial lineup, for the reasons discussed below, in light of the
fact that the jury received evidence that Jesus was unable to identify Lopez either at trial
or at the preliminary hearing, we conclude that any such evidentiary omission did not
prejudice Lopez.
Jesus testified at trial that he did not recognize Lopez as one of his attackers, and
that he had not been able to identify Lopez as one of his attackers in June of 2007 when
he saw Lopez at the preliminary hearing. The prosecutor acknowledged during his
closing argument that Jesus had not identified Lopez "in June of 2007"—when the
preliminary hearing was held—or at trial. During his closing argument, Lopez's counsel
argued, at length, that Jesus's identification of Lopez at the curbside showup was
unreliable, and noted that Jesus had not been able to identify Lopez in either a
photographic lineup or a physical one.
Thus, notwithstanding the "inherently suggestive" nature of the in-court
identification process (People v. Palmer (1984) 154 Cal.App.3d 79, 88), Jesus did not

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identify Lopez as a perpetrator of the charged offenses at either the preliminary hearing
or at trial. Further, in light of Jesus's testimony and the closing arguments of both the
prosecutor and Lopez's counsel, the jury was clearly aware of this fact, but nevertheless,
convicted Lopez of the charged offenses. Under these circumstances, we do not see how
informing the jury that Jesus would not have identified Lopez at a pretrial lineup could
have affected the outcome of the case.
We reject Lopez's arguments to the contrary. First, Lopez's primary argument as
to prejudice is that the lineup would have been conducted closer in time to the attack, and
that, if a lineup had been conducted, the People would not have been able to attribute
Jesus's failure to identify Lopez in court to the passage of time. The June 2007
preliminary hearing was held less than a week after the denial of Lopez's motion for a
pretrial lineup. Thus, the jury learned that Jesus had not identified Lopez in court at or
near the time that a pretrial lineup would have been conducted.11 Further, during his
closing argument, the prosecutor argued that Jesus's identification of Lopez at the
curbside showup was more reliable because it was made near the time of the crimes
rather than "four months later in court in June [at the preliminary hearing]. . . ."
With respect to Lopez's contention that evidence that Jesus had failed to identify
him during an anonymous pretrial lineup would have "thwarted" the prosecution's
argument that Jesus was not willing to identify Lopez due to fear, the prosecution could
have persuasively argued that Jesus's inability to identify Lopez during a pretrial lineup
11 The prosecutor and Lopez's counsel stipulated before the jury that the preliminary
hearing occurred on June 6, 2007.

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was based on his fear that Jesus would later be required to testify in front of Lopez at his
trial.
In sum, the probative value of evidence that Jesus could not have identified Lopez
at a pretrial lineup would have been exceedingly marginal under the circumstances of this
case. Further, contrary to Lopez's contention in his brief, there was considerable
circumstantial evidence of Lopez's guilt on the charged offenses, apart from Jesus's out-
of-court identification of him. (See pt. III.B.2.c.(i)., post.) Accordingly, we conclude
that any error that the trial court may have committed in denying Lopez's request for a
pretrial lineup was harmless beyond a reasonable doubt.
2. There is sufficient evidence to support the jury's guilty verdicts;
the trial court did not err in denying Lopez's motion for a new
trial on the ground that the jury's verdicts were contrary to the
evidence
Lopez claims that there is insufficient evidence to support the jury's findings of
guilt on the charged offenses and on the related gang enhancements. Lopez also claims
that the trial court erred in denying his motion for a new trial on the ground that the jury's
verdicts were contrary to the evidence.
a. Standards of review
In determining the sufficiency of the evidence to support a guilty verdict, "the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he
court must review the whole record in the light most favorable to the judgment below to

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determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557,
578.)
We review a defendant's claim that the trial court erred in denying his motion for a
new trial on the ground that the verdict was contrary to the evidence pursuant to the abuse
of discretion standard of review. (People v. Staten (2000) 24 Cal.4th 434, 466 [" ' " 'The
determination of a motion for a new trial rests so completely within the court's discretion
that its action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears.' " ' [Citation.]"].)
b. Governing law
(i) The charged offenses and the gang enhancements
The jury found Lopez guilty of two counts of assault with a deadly weapon (§ 245,
subd. (a)(1).) As to each count, the jury found that Lopez committed the offense in
association with a gang under the circumstances described in section 186.22, subdivision
(b)(1).
Section 245, subdivision (a)(1) prohibits committing "an assault upon the person
of another with a deadly weapon . . . ." Section 186.22, subdivision (b)(1) provides for an
enhanced sentence for "any person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal street gang, with the specific
intent to promote, further, or assist in any criminal conduct by gang members . . . ."

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(ii) Aiding and abetting
"A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime. [Citation.]"
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "Mere presence at the scene of a crime
is not sufficient to constitute aiding and abetting, nor is the failure to take action to
prevent a crime, although these are factors the jury may consider in assessing a
defendant's criminal responsibility." (People v. Garcia (2008) 168 Cal.App.4th 261, 272-
273.)
(iii) The sufficiency of a testifying witness's
out-of-court identification of a criminal
defendant to support a jury's guilty verdict
In People v. Gould (1960) 54 Cal.2d 621 (Gould) overruled by People v.
Cuevas (1995) 12 Cal.4th 252 (Cuevas), the Supreme Court held that a testifying
witness's out-of-court identification "that cannot be confirmed by an identification [of the
defendant] at the trial is insufficient to sustain a conviction in the absence of other
evidence tending to connect the defendant with the crime." (Gould, supra, 54 Cal.2d at
p. 631.) In Cuevas, supra, 12 Cal.4th at page 257, the Supreme Court overruled Gould's
holding that an out-of-court identification is, as a matter of law, insufficient by itself to
sustain a conviction. The Cuevas court held that the sufficiency of an out-of-court
identification to support a conviction should be determined by applying the ordinary
substantial evidence test outlined in People v. Johnson, supra, 26 Cal.3d 557. (Cuevas,

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supra, 12 Cal.4th at p. 257.) Thus, pursuant to Cuevas, "the probative value of the
identification and whatever other evidence there is in the record are considered together
to determine whether a reasonable trier of fact could find the elements of the crime
proven beyond a reasonable doubt." (Cuevas, supra, 12 Cal.4th at p. 274.)
The Cuevas court noted that the probative value of an out-of-court identification
will depend on many circumstances related to the out-of-court identification, including:
"(1) the identifying witness's prior familiarity with the defendant;
(2) the witness's opportunity to observe the perpetrator during the
commission of the crime; (3) whether the witness has a motive to
falsely implicate the defendant; and (4) the level of detail given by
the witness in the out-of-court identification and any accompanying
description of the crime." (Cuevas, supra, 12 Cal.4th at p. 267.)
In addition, the Cuevas court noted various circumstances relating to a witness's
failure to identify the defendant at trial may be relevant in assessing the probative value
of the out-of-court identification, including:
"(1) whether the identifying witness admits, denies, or fails to
remember making the out-of-court identification; (2) whether the
witness remembers the underlying events of the crime but no longer
believes in the accuracy of the out-of-court identification;
(3) whether, if the witness claims the identification was false or
erroneous, the witness offers an explanation for making a false or
erroneous identification; (4) whether, if the witness claims a failure
of recollection, there are reasons supporting the loss of memory;
(5) whether there is evidence that the witness's failure to confirm the
identification in court resulted from the witness's appreciation that
doing so would result in the defendant's conviction; or (6) whether
there is evidence that, as the Attorney General suggests occurred
here, the witness's failure to confirm the identification arises from
fear or intimidation." (Cuevas, supra, 12 Cal.4th at pp. 267-268.)

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(iv) A motion for new trial on the ground that the
jury's verdict is contrary to the evidence
Section 1181 provides in relevant part: "When a verdict has been rendered or a
finding made against the defendant, the court may, upon his application, grant a new trial,
in the following cases only: [¶] . . . [¶] 6. When the verdict or finding is contrary to law
or evidence. . . ."
In Porter v. Superior Court (2009) 47 Cal.4th 125, the Supreme Court described
the manner by which a trial court is to rule on a motion for new trial made pursuant to
section 1181(6):
"[The trial court] independently examines all the evidence to
determine whether it is sufficient to prove each required element
beyond a reasonable doubt to the judge, who sits, in effect, as a '13th
juror.' [Citations.] If the court is not convinced that the charges
have been proven beyond a reasonable doubt, it may rule that the
jury's verdict is 'contrary to the . . . evidence.' [Citations.] In doing
so, the judge acts as a 13th juror who is a 'holdout' for acquittal."
(Porter, supra, at p. 133.)
c. Application
(i) There is sufficient evidence in the record to
support the jury's guilty verdicts on the
charged offenses
Lopez claims that the evidence in the record is insufficient to support the jury's
guilty verdicts because Jesus's out-of-court identification of him was unreliable, and there
was no evidence that Lopez "did anything more than exit from and stand outside of one
of the cars from which some of the people who chased Jesus C. and Jonathan F. came out
of."

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At the outset, we reject Lopez's argument that the circumstances of the out-of-
court identification (Cuevas, supra, 12 Cal.4th at p. 267), demonstrate that the probative
value of the identification was "minimal or nonexistent." While Jesus had no prior
familiarity with Lopez, he also had no motive to falsely implicate Lopez in the charged
offenses. (Ibid.) In considering the other circumstances that the Cuevas court cited as
relevant in determining the probative value of an out-of-court identification (ibid.), Jesus
had at least some opportunity to observe Lopez during the crime and he gave a
moderately detailed description of his assailants to the responding officers, including
stating that the attackers were Hispanic males in their teens to twenties, some of whom
had shaved heads. Jesus was also able to describe the cars in which the perpetrators
arrived at the scene.
Lopez argues that Jesus was undoubtedly under a significant amount of stress at
the time he made the out-of-court identification because "he had just been through a very
traumatic experience." While this may be so, one could argue with equal plausibility that
the timing of Jesus's identification of Lopez increased its reliability because it was made
near the time of the commission of the charged offenses. (See People v. Cowger (1988)
202 Cal.App.3d 1066, 1071 ["a prompt identification shortly after the commission of a
crime will be more accurate than a belated identification days or weeks later"].) Further,
while Lopez argues that certain environmental factors are likely to have impacted Jesus's
ability to observe Lopez during the curbside showup, he has not demonstrated that any of
these factors rendered the curbside showup so inherently unreliable that the jury could

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not have reasonably relied on the identification in considering whether Lopez committed
the charged offenses.
In considering the circumstances of Jesus's failure to identify Lopez at trial, the
jury could have reasonably concluded that the failure arose from fear or intimidation.12
(See Cuevas, supra, 12 Cal.4th at p. 268.) In addition, at trial, Jesus admitted to having
made the out-of-court identification, and also testified regarding the underlying events of
the crime, thereby bolstering the probative value of the out-of-court identification. (Id. at
pp. 267-268.)
We reject Lopez's claim that the only evidence of his participation in the charged
offenses was that he got out of one of the cars at the scene of the incident. At trial, Jesus
testified that the people whom he identified during the April curbside showup had chased
him and had been involved in the attack:
"[The prosecutor]: The people that you identified to the police back
in April, if you can remember, when you identified them[,] were
those the people that had gotten out of the cars or do you know what
they did? [¶] Were those people that had actually gotten out of the
cars?
"[Jesus]: Yes.
"[The prosecutor]: Do you know if those people that you pointed
them out, when you pointed them out were these the people that
were involved in the chase?
"[Jesus]: Yes.
12 At trial, Jesus testified that he did not want to be at the trial and that he was
worried about something happening to him based on his appearing in court.

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"[The prosecutor]: Were any of these people saying anything else to
you while they were chasing you?
"[Jesus]: I don't remember."13
Further, Jesus's identification of Lopez was not the only evidence of Lopez's guilt
on the charged offenses. (See Cuevas, supra, 12 Cal.4th at p. 274 [reviewing court must
consider all of the evidence of the defendant's guilt in the record, in determining whether
it contains substantial evidence to support the jury's verdict].) Police encountered Lopez
a short time after the assault, at a residence a few blocks from the scene of the assault,
sitting in a chair that had the initials of the gang (ESD) responsible for the attack etched
into it.14 Three of the other persons who Jesus identified at the curbside showup were
also at the residence, including codefendants Pasillas and Mena, and Jonathan separately
tentatively identified Mena in a photographic lineup. Pasillas was a documented ESD
gang member. Prior to his detention and eventual arrest for the charged offenses, Lopez
had twice previously been contacted by police while in the presence of documented ESD
gang members. Just outside of the residence, police found freshly painted baseball bats.
Both Jesus and Jonathan testified that that they saw one of their attackers wielding a
baseball bat at some point during the attack.
13 At another point in Jesus's testimony, the prosecutor asked him, "The people that
you identified, did they look like the people that were involved in the attack?" (Italics
added.) Jesus responded in the affirmative.
14 Jesus testified that one of the attackers stated the name of their gang prior to
initiating the assault.

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In sum, considering the record as a whole, and analyzing both the probative value
of the out-of-court identification as well as the other evidence of Lopez's guilt, we
conclude that there is sufficient evidence in the record to support the jury's guilty verdicts
on two counts of assault with a deadly weapon.15
(ii) The trial court did not abuse its discretion
in denying Lopez's motion for a new trial
Lopez's claim that the trial court erred in denying his motion for new trial is based
on the premise that the "probative value of the evidence connecting Lopez to these crimes
was extremely weak and insufficient as a whole to sustain the verdict." We concluded in
part III.B.2.c.(i)., ante, that there is sufficient evidence in the record to support the jury's
guilty verdicts. We further note that the trial court carefully reviewed the evidence
bearing on Lopez's guilt before it exercised its discretion to deny his motion for a new
trial.16 Under these circumstances, we conclude that the trial court did not abuse its
15 Lopez also claims that there is insufficient evidence to support the jury's true
findings on the gang enhancements. However, Lopez's claim is based solely on his
contention that there is insufficient evidence to support the guilty verdicts on the charged
offenses. In light of our conclusion that the record contains sufficient evidence to support
the guilty verdicts on the charged offenses, we reject Lopez's claim regarding the gang
enhancements.

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discretion in denying Lopez's motion for a new trial. (See People v. Staten, supra, 24
Cal.4th at p. 466 [rejecting defendant's claim that trial court erred in denying motion for
new trial because "[a]s discussed, there was sufficient evidence to support the guilt and
penalty verdicts"].)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
16 In denying Lopez's motion for a new trial, the court stated: "Okay. Well, having
presided over this trial, my observation is that it was definitely a close case as to some of
these defendants. And I think there was sufficient circumstantial evidence to tie Mr.
Lopez in with the offense, based on the testimony of Jesus. [¶] Plus, within a very short
period of time, perhaps just coincidentally, [Lopez] is found sitting . . . out [in] front of a
house with some of the very same people that were also involved in that assault. [¶] And
I think this is what the jury really hung their hat on, and that is the testimony of Jesus.
Obviously, his reluctance, justifiably, to identify anybody based on his fear of
retaliation . . . . [T]hese young boys were reluctant to identify anybody because of
retaliation and their fear of retaliation. [¶] Not only that, a bat was found nearby where
[Lopez] and his companions were seated on the lawn in front of this house. One of them
fled into the house upon the police showing up. So you have not only proximity of space,
but also of time. [¶] So I'm going to, on balance, deny the motion for a new trial."

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