P. v. Duran

Filed 6/5/07 P. v. Duran CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

RELEVANT PROCEDURAL BACKGROUND

On January 27, 2005, an information was filed charging appellant in count 1 with second degree robbery (Pen. Code, 211),[1] and in count 2 with possession of a firearm as a felon ( 12021, subd. (a)(1)). It alleged under count 1 that appellant had personally used a handgun during the robbery ( 12022.53, subd. (b)), and under count 2 that appellant had a prior felony conviction for robbery; in addition, it alleged that appellant had three prior convictions within the scope of the Three Strikes law ( 667, subds. (b)-(i), 1170. 12, subds. (a)-(d)). Appellant pleaded not guilty and denied the special allegations.

Trial was by jury. At trial, appellant stipulated to the truth of the special allegation under count 2. On July 25, 2005, the jury found appellant guilty as charged under both counts, and found the special allegation under count 1 to be true. Following trial, appellant admitted the prior convictions alleged under the Three Strikes law. The trial court imposed a total sentence of 35 years to life under count 1, and stayed punishment under count 2 ( 654).

FACTS

A. Prosecution Evidence

The key prosecution witnesses were Gloria Valencia and Meredith Espiritu. Valencia testified that on September 1, 2004, she was working at a Radio Shack store in Highland Park with Maria Licona and Raul Orellano. A few minutes before the store closed at 9:00 p.m., Valencia was at the cash register. A Hispanic man holding a gun approached Valencia, and said, Look. Look, girl, look down and give me all your money. When Licona walked up and asked whether the man needed assistance, he aimed the gun at her and told her to turn around and not look at him. Licona then moved away. The man also pointed the gun at Orellano, who was near the back of the store. The man again demanded money from Valencia, who pulled the cash drawer out of the register. The man emptied the drawer and left the store.

Valencia further testified that two weeks later, she was shown a photographic lineup, and selected two photos as resembling the robber. She identified appellant as the robber at the preliminary hearing and during her trial testimony. On cross-examination, Valencia stated that she did not notice a tattoo on the robbers neck.

Esperitu testified that at about 8:50 p.m. on September 15, 2004, she was sitting in a vehicle outside the Radio Shack store, waiting for Orellano -- who was her boyfriend -- to finish work. She saw a Hispanic man pass in front of her vehicle, look toward her, and enter the store. Less than five minutes later, he came out of the store and walked away. Two weeks later, she was shown a photographic lineup and recognized a photo of the man she saw entering and leaving the store. At trial, she identified appellant with certainty as this man. During cross-examination, she acknowledged that she did not notice a tattoo on the mans neck as he entered and left the store.

Los Angeles Police Department detective Elias Villasenor testified that he interviewed Valencia and Esperitu after the robbery, and compiled the photographic lineup shown to them. This lineup consisted of two rows of three photographs, with appellants picture in the middle of the bottom row, in the No. 5 position. Valencia identified the photos in the No. 1 and No. 5 positions as looking like the robber, and Espiritu unhesitatingly selected the photo in the No. 5 position as depicting the man she saw enter and leave the Radio Shack store. The photographic lineup shown to Valencia and Esperitu were admitted into evidence, together with a videotape of the robbery taken by a security camera in the Radio Shack store. Also admitted into evidence was a photo taken when appellant was arrested, which displays a tattoo on the right side of his neck.

B. Defense Evidence

Jeff Deacon, a fingerprint expert employed by the Los Angeles Police Department, testified that he located 16 fingerprints in the Radio Shack store. The parties stipulated that upon analysis, none of these prints were found to match appellants fingerprints, and that a search of his residence did not disclose evidence of the robbery.

DISCUSSION

Appellant contends that (1) the pretrial photographic lineup was impermissibly suggestive, (2) the prosecutor withheld exculpatory evidence concerning the photographic lineup in violation of Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady), and (3) he received ineffective assistance from his counsel.

A. Photographic Lineup

Appellant contends that the photographic lineup denied him due process because it was impermissibly suggestive, and tainted Valencias and Espiritus identifications at trial. For the reasons set forth below, we reject appellants contentions.

1. Governing Principles

In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 989.) An identification is constitutionally unreliable when, and only when, the answer to the first question is, Yes, and the answer to the second question is, No. (People v. Gordon (1990) 50 Cal.3d 1223, 1242, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.) We review the trial courts findings of historical fact under a deferential standard, but determine independently whether the pretrial identification procedure was unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)

2. Underlying Proceedings

Prior to trial, appellants trial counsel, Jack Whitaker, contended that the photographic six-pack lineup shown to Valencia and Espiritu was impermissibly suggestive due to markings on the photo array. Approximately one-quarter inch below appellants photo are the printed notations ID: 92281 and Name:23348. The trial court rejected the contention, reasoning that the notations themselves did not suggest appellant had committed a crime, and that the men portrayed in the lineup were similar in appearance.

At trial, Espiritu testified that she made eye contact with the man she saw enter the Radio Shack store, and that she had a good look at him as he passed in front of her vehicle. Before she viewed the photographic lineup, Detective Villasenor read her an admonition, which stated that the lineup may or may not contain a picture of the person who committed the robbery, and asked her to [p]ay no attention to any markings or numbers that may appear on the photos. She immediately recognized the man she had seen, circled his photo -- which was in the No. 5 position -- and wrote that it was the photo of a man that entered the Radio Shack. She had no doubt about this identification. Although she noticed some numbers under the photo, she paid no attention to them.

On direct examination, Valencia testified -- as she had testified at the preliminary hearing -- that she received instructions about the lineup and then circled the photos in the No. 1 and No. 5 positions. After selecting these photos, she wrote the following remark: The two persons I circled look[] like the man that came to me and asked me for the money and pointed the gun at me.

During defense counsels cross-examination, Valencia stated that she did not notice the markings under the photo in the No. 5 position. She also disclosed for the first time that her viewing of the lineup had been interrupted. After she circled the photo in the No.1 position, she was taken out of the room in which she had been examining the lineup. She could not remember why she left the room or exactly what Villasenor said when he led her back to the room.

According to Valencia, Villasenor indicated upon their return that he was going to let [her] take another look at the photographs, and asked her to focus and remember what had happened and make sure that the person [she] picked out was the correct one. No one said anything about the photo in the No. 5 position, and she believed that Villasenor and the other officers left her alone in the room. She felt no pressure to pick a different picture, and did not recall thinking that she might be wrong about the photo in the No. 1 position. Valencia described her thought process in selecting appellants photo as follows: Well, I was paying close attention to his face, because when I picked out No. 1, I did it more quickly. And when I went back I focused on what had happened and the pictures that I was looking at. According to Valencia, she did not select the photo in the No. 5 position to make the officers happy.

Villasenor testified that when Valencia first saw the lineup, she indicated that the person depicted by the photo in the No. 1 position might be the robber, but she was not sure, and she did not circle any photo. As she examined the lineup and talked to Villasenor, she became visibly shaken about the robbery. Villasenor decided to give her a little bit of a break, and said to her: Okay. Ill go ahead and send you outside, and Ill bring in the other witnesses. After interviewing Orellano and Licona, Villasenor returned Valencia to the room, reminded her of the events involved in the robbery, confirmed that she remembered the admonition, and placed the lineup in front of her. She then circled the photos in the No. 1 and No. 5 position, and wrote her statement.

Regarding the lineup, Villasenor testified that he had no control over the placement of the notations on the array, which are computer-generated. He acknowledged that he selected the No. 5 position for appellants photograph.

Following the close of the prosecution case-in-chief, defense counsel unsuccessfully sought a judgment of acquittal ( 1118.1) on the theory that Valencias and Espiritus testimony was insufficient to establish appellants guilt, but he never objected to the admission of Valencias identifications on the basis of

her testimony at trial. After the jury returned its verdict, appellant discharged his trial counsel and was appointed new defense counsel, who filed a motion for a new trial based, in part, on challenges to the pretrial identifications. The trial court denied this motion.

3. Analysis

Appellant contends that (1) the notations below appellants photo rendered the lineup impermissibly suggestive, and (2) the procedure employed in connection with Valencias viewing of the lineup was improper. In our view, both contentions fail.

a. Notations On Lineup

We begin with the notations on the lineup. Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witnesss identification the identity of the person suspected by the police. [Citation.] However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the lineup. [Citations]. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

Instructive applications of these principles are found in People v. Hicks (1971) 4 Cal.3d 757 (Hicks) and People v. James (1976) 56 Cal.App.3d 876 (James). In Hicks, the photographic lineup consisted of eight pairs of mug shots, including photos of the defendant and his accomplice in the underlying crime. (Hicks, supra, 4 Cal.3d at p. 764.) The defendant contended that the lineup was unduly suggestive, arguing that the photographs of himself and his accomplice had a gray background while the others had a white background, and were dated July 1968 -- the month in which the underlying crime occurred -- while the others were dated March 1968. (Ibid.) Our Supreme Court rejected the contention, noting that police officers who prepared the lineup chose photos depicting men similar in appearance to the defendant and his accomplice, they had merely asked the witness whether any of the photos resembled the perpetrators, and the witness testified that he did not notice the backgrounds or dates. (Ibid.;see also People v. Hill (1974) 12 Cal.3d 731, 766, overruled on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [concluding that a photographic lineup was not impermissibly suggestive on essentially similar facts].)

Again, in James, the photographic lineup consisted of six photos, including photos of the two defendants. (James, supra, 56 Cal.App.3d at p. 885.) The photos of the defendants, unlike the other photos, had numbers at the bottom, although one other photo carried the label Sheriffs Department at the bottom. (Ibid.) Following an independent review of the lineup, the court in James concluded that under the totality of the circumstances, the lineup was not impermissibly suggestive. (Ibid.)

We reach the same conclusion here. The men in the lineup are similar in appearance, and the numbers following the notations Case and Name under appellants photo have no clear significance in themselves. Before viewing the lineup, Valencia and Espiritu were told that it might not contain photographs of the robber, and were instructed to ignore markings on the photos. Valencia testified that she did not notice the notations, and Espiritu testified that she ignored them in making her identification. In view of Hicks and James, the lineup was not impermissibly suggestive.

Relying on People v. Carlos (2006) 138 Cal.App.4th 907 (Carlos), appellant contends that the lineup denied his due process rights. We disagree. In Carlos, the victims of a donut shop robbery were shown a photograph lineup in which the defendants photo was in the No. 5 position. (Id. at p. 910.) The defendants name and the case i.d. number were printed immediately below his photo. The lineup was not produced to defense counsel prior to trial, and when defense counsel obtained a copy at the inception of trial, the trial court denied his request for a continuance. (Id. at p. 911.) Although two victims had selected the defendants photo when shown the photographic lineup, no witness was able to identify the defendant at trial, and one victim testified that a police officer told him to choose the defendants photo from the lineup. (Id. at pp. 909-910.) Aside from the photographic identifications, the only evidence admitted at trial linking the defendant to the robbery was a partial fingerprint found on the donut shop cash register. (Id. at p. 909.) The court in Carlos concluded that under the totality of the circumstances, the lineup was impermissibly suggestive and prejudicial. (Id. at p. 912.)

Regarding the lineup itself, the court stated: The problem with the six-pack is obvious -- it is not just that Carloss name and an identification number are printed on the front of the form, it is that they are printed directly below his picture. The prosecutors representation that all six-packs are similarly labeled may be correct, but whether by chance or design the problem here is that the suspects photograph is directly above the name and number. Although the name placement is not quite an arrow pointing to Carlos, it is plainly suggestive. (Carlos, supra, 138 Cal.App.4th at p. 912.) It noted that this problem could be avoided in the future by placing the name and identification number on the back of the lineup or in some other place that does not highlight a photograph. (Ibid.)

We agree with this proposal, but conclude that Carlos is factually distinguishable. Unlike Carlos, appellants name did not appear on the array, Valencia and Espiritu were admonished to disregard markings on the photos, and both testified that they were not influenced by the notations on the lineup. Furthermore, unlike the victims in Carlos, both Valencia and Espiritu identified appellant at trial, and each confirmed that her identification rested on independent recollection of the robber. In sum, the notations on the photographic lineup were not impermissibly suggestive.

b. Interrupted Viewing of the Lineup

Appellant also contends that by interrupting Valencias examination of the lineup, Villasenor impermissibly suggested that the photo in the No. 1 position was not the correct choice. Appellant has forfeited this contention by failing to raise a timely objection based on it before the trial court. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) Moreover, absent a forfeiture, we would conclude that it is mistaken.

Suggestive comments or conduct that single out certain suspects or otherwise focus a witnesss attention on a certain person in a lineup can cause such unfairness so as to deprive a defendant of due process of law. [Citation.] However, the reviewing court must examine the totality of the circumstances in determining whether or not a lineup procedure has been unconstitutionally suggestive. [Citation.] (People v. Perkins (1986) 184 Cal.App.3d 583, 588-589.)

Unfairness in the procedure must be established as a demonstrable reality, not just speculation. (Ibid.)

Because appellant did not raise this contention in a timely manner at trial, the trial court did not resolve the factual discrepancies between Valencias and Villasenors accounts of the underlying events. Nonetheless, the contention fails under either account. Valencia testified that following the interruption, she felt no pressure to select a photo other than the one that she had already circled, and Villasenor testified that Valencia circled both photos after the interruption, which occurred only because she was upset. On neither account was Valencia subjected to any encouragement, however, subtle, to select appellants photo.

Appellant contends that Villasenor improperly encouraged Valencia to select his photo when she viewed the lineup after the interruption. He argues that Villasenors testimony establishes that when Valencia examined the lineup the second time, she initially selected the photo in the No. 1 position, and she choose the photo in the No. 5 position only after Villasenor told her to take her time. Here, Villasenor testified as follows: When she looked at [the lineup] the second time, once again, she had pointed to No. 1 saying he looks like the individual. She continued to look at the six-pack. I asked her just to take -- you know, just take your time, just look at it. And at that time she indicated No. 1 and No. 5. So she was picking between No. 5 and No. 1. So at that time I had her just circle No. 1 and No. 5 and [had] her write down her statement.

In our view, Villasenors phrase, once again, she had pointed to No. 1, is unclear in meaning, and may refer back to her first observation of the lineup. Nonetheless, even if appellant is correct about the significance of this phrase, Villasenors testimony indicates that Valencia continued to examine the lineup, and thus manifested uncertainty about the photo in the No. 1 position. Viewed in context, his remarks communicate a concern that she make her identification with as much confidence as possible, but do not suggest that she should make a different selection.

Citing United States v. Field (9th Cir. 1980) 625 F.2d 862, appellant contends that Villasenors conduct was improper. There, an FBI agent showed a photographic lineup to a witness, who chose a photograph of a person other than the defendant. (Id. at p. 869.) When the agent told the witness that his selection was mistaken, the witness chose the defendants photograph, and the agent told him that he was correct. (Ibid.) The Ninth Circuit held that this conduct tainted the witnesss in-court identification of the defendant. (Ibid.) As we have explained, Villasenor did not suggest in any manner that Valencia should choose appellants photo, and thus Field is inapposite.[2]

B. Brady Violation

Appellant contends that the prosecutor breached her duty under Brady to disclose the interruption in Valencias viewing of the pretrial lineup. The police reports did not mention this interruption, and defense counsel learned of it only during Valencias cross-examination.[3] Appellant argues that the failure to disclose the interruption impaired his counsels ability to prepare for trial by securing an expert witness on identification procedures and investigating the possibility of complaints about Villasenors use of photographic lineups. We disagree.

The United States Constitution obliges a prosecutor to disclose exculpatory material evidence to the defendant in a criminal case. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377.) Under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady, supra, 373 U.S. at p. 87.) The prosecutor must disclose so-called Brady material held by police officers acting on the prosecutions behalf, even without a request from the defendant. (People v.

Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) There are three elements to a Brady claim: first, [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; second, that evidence must have been suppressed by the State, either willfully or inadvertently; and third, prejudice must have ensued. (Id. at p. 1042, quoting Strickler v. Greene (1999) 527 U.S. 263, 281-282.)

Here, defense counsel never objected at trial to the late disclosure of the interruption, nor did he seek a continuance following Valencias cross-examination to adjust his defense strategy. Instead, he cross-examined Valencia about the interruption, and contended during his closing argument that Villasenors conduct undermined the reliability of her pretrial and in-trial identifications. Appellant first raised his contention under Brady in his motion for a new trial. In view of defense counsels conduct, appellant has forfeited his contention that the tardy disclosure of the interruption impaired his defense. (People v. Seaton (2001) 26 Cal.4th 598, 641 [defendant forfeits claim that prosecutors failure to provide discovery hindered defense by failing to present the claim to trial court].)

Moreover, notwithstanding the forfeiture, appellant has failed to establish that he suffered prejudice from the late disclosure of the interruption. Generally, prejudice is established only if there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result . . . would have been different. [Citations.] The requisite reasonable probability is a probability sufficient to undermine[ ] confidence in the outcome on the part of the reviewing court. [Citation.] (Salazar, supra, 35 Cal.4th at p. 1050.) Absent such prejudice, there is never a real Brady violation. (Id. at p. 1043.)

As our Supreme Court explained in Salazar, [p]rejudice, in this context, focuses on the materiality of the evidence to the issue of guilt and innocence. (Salazar, supra, 35 Cal.4th at p. 1043, quoting United States v. Agurs (1976) 427 U.S. 97, 112, fn. 20.) This is because the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. (Salazar, supra, 35 Cal.4th at p. 1050, quoting Kyles v. Whitley (1995) 514 U.S. 419, 436-437.) Thus, undisclosed evidence that tends to impeach a witnesss credibility is generally material only when the witness supplied the only evidence linking the defendant to the crime. (Salazar, supra, 35 Cal.4th at p. 1050.)

In view of these standards, the interruption in Valencias viewing of the lineup was not material evidence. As we have explained (see pt. A.3.b., ante), nothing in Valencias and Villasenors testimony suggests that Valencia was encouraged or pressured to identify appellants photo in the lineup. Moreover, Espiritu independently and unequivocally identified appellant as the robber, and thus her testimony corroborated Valencia on this matter. There was no Brady violation.

C. Ineffective Assistance of Counsel

Appellant contends that his trial counsel rendered ineffective assistance by failing to (1) challenge the admission of Valencias identifications, (2) request that the jury be instructed with CALJIC No. 2.28, (3) secure an expert on eye witness identifications, and (4) present Licona as a defense witness. In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citations.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [ Citations.] (People v. Jennings (1991) 53 Cal.3d 334, 357.)

Regarding items (1) and (2), defense counsel does not render ineffective assistance by declining to raise meritless objections. (People v. Price (1991) 1 Cal.4th 324, 387.) As we have indicated (see pts. A.3.b. and B., ante), neither the interruption in Valencias viewing of the lineup nor the late disclosure of this interruption provide a basis for barring her testimony, and thus appellants counsel did not err by refraining from challenging the admission of her testimony. Moreover, because there was no Brady violation, counsel properly declined to request that the jury be instructed with CALJIC No. 2.28, which addresses a partys failure to produce evidence in compliance with the law (People v. Bohannon (2000) 82 Cal.App.4th 798, 807, fn. 10).

Regarding items (3) and (4), defense counsel is accorded considerable latitude in the selection of a defense strategy (People v. Cunningham, supra, 25 Cal.4th at pp. 1004-1007), provided that it is informed by adequate investigation and preparation (In re Marquez (1992) 1 Cal.4th 584, 602). To show deficient performance, appellant must demonstrate[] that the record affirmatively discloses that counsels acts or omissions cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.] (People v. Shoals (1992) 8 Cal.App.4th 475, 501.) Because the decision to call a witness is a matter of trial tactics, a reviewing court generally will not second guess this decision. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058-1059.) Moreover, regarding item (3), appellant must do more than surmise that defense experts might have provided more favorable testimony. (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5.)

In lieu of presenting an expert witness, defense counsel vigorously cross-examined Valencia and Espiritu about their contact with the robber and their pretrial and in-trial identifications, and he contended in closing argument that they were unreliable witnesses, pointing out, for example, that they never noticed whether the robber -- like appellant -- had a large tattoo on his neck. The record does not otherwise indicate why counsel declined to call an expert or what an expert would have contributed to appellants defense. Accordingly, appellant has not shown that the failure to present an expert witness was a prejudicial lapse from professional norms. (People v. Bolin (1998) 18 Cal.4th 297, 334.)

Finally, appellant contends that Whitaker erred in failing to call Licona as a defense witness because at the preliminary hearing she was adamant that appellant was not the robber. The record does not support this contention. During the preliminary hearing, Villasenor testified that about two weeks after the robbery, Licona identified appellants photo in the lineup as most similar to the robber, and Licona testified that she had selected the photo in the No. 5 position at a time the incident was fresh in [her] mind. However, when asked whether she saw the robber in court, Licona responded, No, I dont see that person. Licona thus identified appellants photo as closely resembling the robber shortly after the crime, but was unable to make an in-court identification at the preliminary hearing three and one-half months after the crime. Accordingly, defense counsel, who represented appellant at the preliminary hearing, reasonably could have concluded that Liconas testimony carried a greater potential for harm than good to appellants defense. (People v. Stankewitz (1990) 51 Cal.3d 72, 115.) In sum, appellant did not receive ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] All further statutory references are to the Penal Code.

[2] In view of this conclusion, we reject appellants contention that the lineup tainted Valencias in-court identification of appellant. We also conclude that appellants other challenges to Valencias in-court identification fail. Appellant contends that the in-court identification was unreliable because (1) in response to her inquiry Villasenor told her shortly before the preliminary hearing that the guy would be present at the hearing, and (2) Valencia did not wear her eyeglasses at the preliminary hearing and at trial. Regarding item (1), Valencia testified that when asked, Villasenor told her only that somebody would appear at the preliminary hearing who had a right to see who was testifying against him, and she was not sure from his remarks who that person would be. That Valencia knew a person accused of the crime would appear at the hearing did not, by itself, taint her identification. (People v. Fitzgerald (1972) 29 Cal.App.3d 296, 314-315.) Regarding item (2), Valencia testified that she began wearing glasses solely for driving purposes only after the preliminary hearing, that she did not have any trouble seeing appellant on the date of the robbery, that she saw well up close, and that she could see appellant from the witness box.

[3] Regarding Valencias viewing of the photographic lineup, Villasenors police report states: I read the photographic admonition to Valencia, which she stated she understood. Valencia viewed the six pack display folder and pointed to position number one and five (Duran) and stated, These two people look like the guy who took the money and pointed a gun at me. I had Valencia circle the photos she identified, initial it, and date it.