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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Antonio O. HERNANDEZ, Defendant and Appellant.


Decided: May 21, 1984

Cliff Gardner, Fiedler & Gardner, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Antonio O. Hernandez appeals from a conviction of robbery (Pen.Code, § 211).   He contends that the trial court committed reversible error by admitting a witness' in-court identification of defendant because the prosecution failed to produce the witness at a magistrate's ordered lineup.   We disagree and affirm the judgment.

On December 2, 1982, defendant was arrested and charged with robbery (Pen.Code, § 211).   A preliminary hearing was set for December 20, 1982.   On December 9, 1982, defendant requested a lineup with the prosecution's witnesses present and the next day the motion was granted by the judge of the municipal court;  the lineup was ordered for December 20, 1982, prior to the preliminary hearing.   The lineup and preliminary hearing were not conducted due to the prosecution's inability to produce its witnesses.

Defendant was rebooked on December 20, 1982, and at his arraignment the next day, he renewed his motion for a lineup.   His request was granted and the lineup was ordered for January 4, 1983, with a preliminary hearing the same day.   Because of the prosecution's inability to produce its witnesses, the lineup and preliminary hearing were not held but were reset for January 18, 1983.

On January 18, 1983, the lineup was held.   Prosecution witnesses present were two police officers and the victim, Janice Bottjen.   At the preliminary hearing the same day, defendant was held to answer;  thereafter, an information was filed charging defendant with robbery (Pen.Code, § 211) alleging infliction of great bodily injury (Pen.Code, § 12022.7) and commission of an offense against an aged person (Pen.Code, § 1203.09).   Defendant pled not guilty.

Jury trial began on April 4, 1983.   The prosecution called Antonio Galeano to testify;  Galeano identified defendant as the perpetrator of the robbery though Galeano was not present at the lineup or at the preliminary hearing.   Counsel for defendant moved to exclude Galeano's testimony and moved for a mistrial.   The court found that the prosecution was “derelict” in not having Galeano present at the lineup, but denied defendant's motion.   The trial court advised counsel that if the evidence of others who observed and chased defendant or if other evidence of identification was not substantial, he could renew the motion at the conclusion of the People's case or at the conclusion of the trial.   The motion was not renewed.   Defendant was found guilty of robbery;  the allegations of great bodily injury and commission of an offense against an aged person were found not true.

Bottjen testified that on December 2, 1982, she went to Lloyd's Bank on Mission and 21st Streets in San Francisco to cash her $614 social security check.   She left the bank carrying a large blue purse and a small canvas bag and placed in her left coat pocket, in the social security envelope, five one-hundred dollar bills and possibly some one dollar bills.   Bottjen left the bank and walked about four steps toward 21st Street when she felt her purse strap snap on her shoulder.   She started screaming and she was pushed onto one knee with her coat pulled over her head, her arm twisted, her foot stepped on, and her “rear ․ kicked” as she was pushed into the wall of the bank.   When she got up, the envelope was not in her coat pocket.   She saw a tall lanky man, wearing a red sweat shirt and dark pants or jeans, running down 21st Street waving his hand above his head.   The man was about four houses away.   She did not see the man's face.   She picked up her bag and ran after the man;  about one-half dozen people also ran after him.   The man ran to Capp Street where he turned the corner and ran toward 22nd Street.   Bottjen saw a crowd of people and police cars on Capp Street.   She lost sight of her assailant.   She told the officers that she lost her social security envelope containing five one-hundred dollar bills.   In less than five minutes, the police arrived with defendant, who was not wearing a red sweat shirt.   Defendant had the same build as her assailant.   The police drove Bottjen to the police station;  after about an hour, they gave her back five one-hundred dollar bills.

Antonio Galeano testified that on December 2, 1982, he was near the intersection of Mission and 21st Streets, about ten meters from the bank.   He saw defendant, wearing a red jacket, grab an older woman's purse and start running.   In response to the victim's cries for help, Galeano and several others ran after defendant;  Galeano followed defendant to Capp Street where defendant ran into a building.   As he ran, defendant clutched to his chest, in both hands, a woman's white purse.   The police arrived and when defendant was arrested he was not wearing the red jacket.   Galeano positively identified defendant as the robber, to the police at the scene of the arrest and at the time of the trial.

Rose Majano, a resident at South Van Ness near 22nd Street, testified that on December 2, 1982, defendant pounded on her door demanding entry.   Majano opened the door with the chain on and shut it when she did not recognize defendant.   Later, she opened the door and saw that defendant had been arrested by the police.   She saw the police remove a red jacket from a garbage can and pick up a social security envelope.

Officer Michael Rodriguez testified that on December 2, 1982, he was on duty near Mission and 21st Streets when he heard a loud scream.   He saw a man in a red jacket running east on 21st Street with several people chasing him.   Rodriguez' partner, Paul Sanchez, who was across the street, yelled that there had been a purse snatch.   Sanchez radioed a description of the suspect and Rodriguez chased the suspect for three blocks until the man ran into a passageway.   Rodriguez was unable to see the man's face, but described the suspect as thin, tall, with a light complexion, rather long and curly hair, wearing a red jacket and light-colored pants.   As the man ran into a passageway, several police cars converged;  Rodriguez continued running and searched several passageways until he saw defendant, who was not wearing a red jacket, pounding on a door.   Rodriguez drew his service revolver and ordered defendant to walk towards him.   As defendant complied, Majano stepped into the passageway and said that defendant was pounding on her door.   Another officer arrived;  defendant was handcuffed, pat searched, and walked back to the patrol cars.   Some persons said, “That is him.   That is the guy.”   Some money was found in defendant's sock.

In his patrol car, Officer James Gervasi responded to a radio call regarding a purse snatch and at the scene, Gervasi saw defendant detained by another officer.   Gervasi assisted in the arrest, then returned to the area of Majano's doorway where he found a social security envelope and a red jacket in the garbage can.

Police Sergeant Dunnegan testified that he searched defendant at the scene and found five crisp new one-hundred dollar bills in defendant's sock.

Defendant testified that on the day of his arrest, he was in the South Van Ness area looking for a place to rent.   He saw a group of policemen, became frightened, and entered a passageway which he believed led to his friend's house.   He knocked on the door;  a woman answered and told him his friend did not live there.   When defendant turned around, he saw Rodriguez pointing a pistol at him.   Defendant always carried his money in his sock.   Two days earlier, he sold his car to a man named “Tito,” who he just met, for $800 cash, including six one-hundred dollar bills and the rest in smaller bills.


 Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681, holds that due process requires that a judge or magistrate has the discretion to grant a defendant's motion for a pretrial lineup.   An appropriate case for granting the motion is one in which “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.”  (Id., at p. 625, 114 Cal.Rptr. 121, 522 P.2d 681.)   The court must consider “not only ․ the benefits to be derived by the accused and the reasonableness of his request but also ․ the burden to be imposed on the prosecution, the police, the court and the witnesses.”  (Ibid.)  The defendant's motion must be timely:  “Such motion should normally be made as soon after arrest or arraignment as practicable.”  (Id., at p. 626, 114 Cal.Rptr. 121, 522 P.2d 681;  see also People v. Vallez (1978) 80 Cal.App.3d 46, 55–56, 143 Cal.Rptr. 914 [passage of time seriously affects memory and a lineup should be conducted for witnesses as soon as practicable].)

 At the January 18, 1983, preliminary examination, Galeano did not testify because the district attorney could not locate him.   It was stated that Mr. Galeano was a sympathizer of the White Panther Party and refused to cooperate with the district attorney.   The magistrate held defendant to answer based on the testimony of the victim and the three police officers who chased defendant after the reported robbery.   This evidence is more than sufficient to support the magistrate's commitment order.  (Pen.Code, § 872, subd. (a).)

 Until the date of the trial, on May 2, 1983, there had been no direct confrontation between the defendant and one of his accusers, Galeano.   After the holding order, the magistrate exhausted all his powers invested by law.  (See Holman v. Superior Court (1981) 29 Cal.3d 480, 174 Cal.Rptr. 506, 629 P.2d 14.)   The right to pre-preliminary hearing discovery is limited to that reasonably necessary to prepare for the preliminary examination including presentation of an affirmative defense and cross-examination of the prosecution's witnesses.  (Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.)   However, the magistrate's role is directed to the preliminary assessment of the truth of the charges filed against the defendant, not to the subsequent trial.  (Holman v. Superior Court, supra, at p. 485, 174 Cal.Rptr. 506, 629 P.2d 14.)


 A defendant may seek a pretrial lineup in superior court, if timely made, after he has been arraigned and after he has been identified at the preliminary hearing as the person who was at the crime scene.   Defense counsel made no such motion.   Such a request may have been timely as being the earliest practicable opportunity after learning that Galeano was available when he appeared at the trial on May 2, 1983.  (See People v. Baines (1981) 30 Cal.3d 143, 148, 177 Cal.Rptr. 861, 635 P.2d 455;  People v. Vallez, supra, 80 Cal.App.3d at pp. 55–56, 143 Cal.Rptr. 914.)   Galeano was named as a witness in the police incident report and was known to be a potential witness throughout the proceedings even though his willingness or availability to be a witness was not known until the date of trial.   Galeano was properly allowed to testify over the objection of defense counsel.   At trial, defendant had the full opportunity to confront and cross-examine Galeano.   The jury observed his demeanor, assessed his credibility, and weighed his testimony with the other evidence produced.


 In the interest of fair play, a lineup is conducted to aid the defendant where eyewitness identification appears to be a material issue.   Defendant should be permitted to discover and utilize evidence that may raise doubts as to a witness' ability to identify the accused.  (Evans v. Superior Court, supra, 11 Cal.3d at p. 623, 114 Cal.Rptr. 121, 522 P.2d 681.)   The People may not refuse to aid the accused in discovery where a timely motion is made and granted to promote the ends of justice.   On January 4, 1983, the magistrate ordered that “all the eyewitnesses involved” be present at a lineup prior to the preliminary examination.   The trial court found that it was a dereliction of the district attorney's responsibility not to comply with the magistrate's order.   If the order was vague or unclear as to who was to be at the lineup, the district attorney should have sought clarification.   The magistrate has the inherent power to order pretrial discovery to assist counsel in preparing for the preliminary examination.  (Holman v. Superior Court, supra, 29 Cal.3d at p. 485, 174 Cal.Rptr. 506, 629 P.2d 14.)   Even though the magistrate held defendant to answer without Galeano's testimony and no challenge was made to the information (Pen.Code, § 995), the district attorney was not excused from compliance with the court order that all witnesses involved “appear at the lineup.”   Some explanation for Galeano's absence should have been placed in the record or demanded by defense counsel.

 Twice the scheduled preliminary examinations were postponed or dismissed because the district attorney was not able to assemble the witnesses for the ordered lineup.   The trial judge stated that the district attorney acted in “good faith” in seeking to secure Galeano as a witness prior to trial.   The prosecution did not intentionally disregard the magistrate's order of January 4, 1983, though the trial court found that the district attorney was in dereliction of his responsibilities.   As in all discovery matters, an accused is entitled to the knowledge to be gained from a lineup sufficiently in advance of preliminary examination and trial to prepare his defense.  (Evans v. Superior Court, supra, 11 Cal.3d at p. 623, 114 Cal.Rptr. 121, 522 P.2d 681;  Holman v. Superior Court, supra, 29 Cal.3d at pp. 485–486, 174 Cal.Rptr. 506, 629 P.2d 14.)

 Where the district attorney intentionally disregards an order for a lineup, acts negligently, or makes no effort to comply with the order, which results in a denial of a fair trial, the court may impose appropriate sanctions, including dismissal, exclusion of witnesses' testimony, or informing the jury of the dereliction of duty.  (People v. Zamora (1980) 28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361;  People v. Ruthford (1975) 14 Cal.3d 399, 405–409, 121 Cal.Rptr. 261, 534 P.2d 1341;  People v. Robinson (1961) 196 Cal.App.2d 384, 388–391, 16 Cal.Rptr. 484.)   The sanctions imposed are within the discretion of the trial court.   Indeed, dismissal or exclusion of testimony would be appropriate if the district attorney suppressed or concealed evidence or otherwise acted in bad faith.   Less drastic sanctions are preferred if the district attorney was merely negligent or acted in good faith.

 There is nothing in the record to support defendant's claim that the trial court's actions were inappropriate.   In light of the entire record, defendant was not denied a fair trial.   The circumstantial evidence fully supported the in-court identification of defendant as the person who took the victim's property by force and fear and amply supported the guilty verdict.

The judgment is affirmed.

LOW, Presiding Justice.

KING and HANING, JJ., concur.