Filed 4/18/13 P. v. Melanson CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133688
v.
ROY ALLEN MELANSON,                                                  (Napa County
                                                                     Super. Ct. No. CR152581)
         Defendant and Appellant.


                                              I. INTRODUCTION
         In September 2011, a jury convicted Roy Melanson of the July 1974 murder of
Anita Andrews. (Pen. Code, § 187, subd. (a).) Melanson was sentenced to life in prison
with the possibility of parole. On appeal, Melanson contends the judgment must be
reversed because (1) evidence of several uncharged offenses was erroneously admitted at
trial; (2) this case should have been dismissed for precharging delay; and (3) a
photographic line-up was impermissibly suggestive. We reject these contentions and
affirm the judgment.
                                       II. STATEMENT OF FACTS
A.       The Murder of Anita Andrews
         In 1974, Anita Andrews and her sister Muriel Fagiani owned Fagiani’s bar in
Napa. Andrews, who was 52, had a day job at a hospital and worked at the bar six
evenings a week. Andrews was clean, neat and fastidious, with set routines and habits.
She always dressed well, wore jewelry and carried a purse containing her checkbook,
cash, makeup and car keys. She would open the bar at around 5:00 p.m. and closed up


                                                             1
some time between 9 and 11:00 p.m. There were never many customers. When she
worked at the bar, Andrews wore a black diamond onyx ring so customers would think
she was married. She also wore a Bulova watch, and a bracelet. She parked her 1967 tan
Cadillac in front of the bar.
       On the evening of July 10, 1974, David Luce and two friends stopped at the bar
for a drink while on their way to dinner. There was only one other customer; a Caucasian
man, possibly in his 40’s, with a wet, flattened hairstyle and thin lips, sat at the bar
drinking a beer and smoking a cigarette. The man, whose legs were crossed in a strange
manner, sat turned away from Luce and his friends and covered his face with his hand.
One of Luce’s friends yelled at the man, wanting to know why he was hiding his face
from them. The man did not respond. Luce convinced his friend to stop and later
apologized and shook the man’s hand, which was soft and limp. At one point, Luce
asked the bartender if the man was her boyfriend and she said that he was.1 Luce and his
friends stayed at the bar for no more than half an hour and when they left, at around 9:30
p.m., Luce had the feeling the bartender was waiting for them to go so she could close the
bar. Several hours later when Luce walked by the bar again, the door was closed, the
lights were out, and the Cadillac that had been parked outside earlier was gone.
       The next morning, Napa Police Officer Joseph Moore responded to a call from the
bar. Muriel Fagiani, who looked to be in shock, told Moore she thought her sister had
been raped and directed him to a storeroom where he found Andrews dead on the floor.
Her clothes were torn and in disarray and blood pooled around her upper torso. Moore
secured the area, other officers arrived, and a bulletin was issued for Andrews’ missing
Cadillac. That morning, David Luce heard about the Andrews murder and contacted the
police to report what he had seen. Later that same day, an unidentified man used


       1
          Andrews’ daughter, who was 23 when her mother was killed, testified that she
last spoke to Andrews a week before the murder. Andrews did not have a boyfriend at
that time but she told her daughter that a man she had briefly dated was bothering her.
He ran up a $400 bill on her phone and she was keeping his tools in the trunk of her car
until he paid her back.


                                               2
Andrews’ credit card in Sacramento to buy gas for her Cadillac. However, the car was
never recovered.
B.     The Crime Scene Investigation
       On the morning of July 11, 1974, the Napa District Attorney employed a
criminalist named Peter Barnett to work on the Andrews homicide case. Barnett arrived
at the bar at around 10:45 a.m., collected evidence and documented observations that
were relevant to the investigation.
       The bar counter had been recently wiped with a towel and was clear except for an
ashtray containing one cigarette butt, a shot glass and a mixing spoon. At an angle from
the ashtray, one bar stool was moved out from the row of neatly arranged stools under the
bar. The sink area behind the counter was also clean and clear except for a screwdriver
sitting on the drain which left a rust mark where it had been placed when wet. Three
basins in the sink were filled with a small amount of water. The water from the middle
basin tested presumptively positive for blood. A crumpled and stiffened towel was on the
floor under the sink. There were blood stains on the bar floor, about two feet from
double doors connecting the bar area to a storeroom. The pattern of the stain suggested
someone had walked there after suffering an injury like a bloody nose or face laceration.
       Andrews was found on the storeroom floor, on her back, partially unclothed.
Blood pooled on the floor and was splattered on the walls and over many of the objects in
the storeroom. Andrews’ clothes were torn, punctured, and partially removed from her
body. Her pants and underclothes were removed from her right leg, but remained on her
left leg, which left her genitals exposed. Her blouse had been opened and her brassiere
pulled down, exposing her breasts. There was glass on the floor and in Andrews’ hair.
Two loose buttons and one of Andrews’s shoes were on the storeroom floor and an
earring was found in the bar area just outside the storeroom. Andrews was not wearing
her watch, ring or other jewelry and investigators did not find a purse, pocketbook, credit
card or car keys. Bloody shoeprints that were not made by Andrews led from the
storeroom to an upstairs office which contained a cash box and a safe. Another shoeprint
was found just inside the front door of the bar.


                                             3
C.     Pathology Evidence
       On July 11, 1974, Dr. David Clary conducted an autopsy of Andrews’ body. Dr.
Clary died in 1982. Dr. Anthony Chapman, who testified at Melanson’s trial as an expert
in forensic pathology, reviewed Clary’s autopsy report, photographs from the autopsy
and various investigative reports pertaining to the Andrews homicide. Dr. Chapman
determined that Andrews died from multiple stab wounds to the body, especially to her
chest, combined with an injury to the head. The nature and distribution of the injuries
that Andrews sustained confirmed that she was the victim of “homicidal violence.”
       The 13 stab wounds that Dr. Chapman independently documented were inflicted
by a thin, pointed instrument which could have been a screwdriver. Andrews also
sustained several blunt force lacerations, including a laceration on her scalp and a skull
fracture that could have been inflicted with a glass bottle. Andrews also had bruises and
abrasions on various parts of her body, a broken nose and other injuries consistent with
being punched. The condition and positioning of Andrews’ clothes, and a bloody towel
found near her genital area were signs that a sexual assault was intended. However,
there was no physical evidence that one occurred.
D.     The Case Against Melanson
       In late 2001, Police Officer Peter Jerich reopened the Andrews homicide case and
submitted a request to the Department of Justice (DOJ) to conduct DNA testing on
several items from the crime scene and on two items from a man named Liston Biel, who
had been a prime suspect at the time of the murder. In May 2006, the Andrews case was
reassigned to Detective Donald Winegar. Winegar took the case because he had recent
experience on a major case that benefited from advancements in the field of DNA
evidence. Winegar followed up on Detective Jerich’s earlier request for DNA testing
with a DOJ criminalist named Michelle Terra.2



       2
       At trial, Terra confirmed that Detective Jerich requested DNA testing in
December 2001. However, because of a significant backlog at the DOJ testing facility in
Sacramento, Terra did not start work on this case until January 2004.


                                             4
       Through her analysis, Terra determined that (1) Liston Biel’s DNA was not found
on any crime scene evidence she tested; (2) Andrews’ blood was on three towels
collected from various locations in the bar, including the towel found under the sink
behind the bar (the sink towel); (3) there were indications that male DNA was also on the
sink towel, but additional analysis called Y-STR testing was required to identify a
potential match.
       In November 2006, Terra sent the sink towel and reference samples to Serological
Research Institute (SERI) for Y-STR testing. A partial DNA profile generated in 2007
excluded Liston Biel as a donor of the blood on the sink towel.
       In 2008, Terra tested additional items from the crime scene. Although she was
unable to create a profile for the screwdriver, Terra developed a full profile for DNA
recovered from the cigarette butt that was found in the ashtray at the crime scene. After
Terra excluded both Andrews and Biel as the source of the DNA, she conducted a
database search which produced a perfect match with appellant Melanson’s DNA.
       In November 2009, Detective Winegar interviewed Melanson who was 72 years
old at the time. The interview took place in a Colorado prison.3 Melanson said he had
never been in Napa and denied any involvement in a murder committed there in the
summer of 1974. Melanson said he was living and working in Colorado that summer
and, before that, he lived with family in Texas after spending some time in prison.
Melanson claimed he did not “even know where Napa Valley is.” When Winegar
disclosed the DNA match, Melanson said the evidence was wrong and he also denied that
his fingerprints were found at the crime scene. Winegar obtained another sample of
Melanson’s DNA, and also took his fingerprints and a writing sample.
       The DNA sample Winegar obtained from Melanson confirmed a match with the
DNA from the cigarette butt. Michelle Terra, the DOJ criminalist, calculated that such a
match would occur among unrelated individuals once in 8.8 quintillion Caucasians, once
in 170 quintillion Hispanics, and once in 570 quintillion African Americans. Melanson’s

       3
           A videotape of the interview was played for the jury at trial.


                                               5
DNA also matched a profile of DNA that was found on the sink towel which was
developed by an analyst named Gary Harmor in 2010. Harmor used Y-STR analysis to
obtain a sample from that towel that generated a 10-marker profile. Harmor concluded
that all 10 markers matched Melanson’s Y-STR DNA profile. Harmor found only one
match in his database of 11,393 males and calculated the rarity of this profile as one in
3,846 males.
       Experts also analyzed Melanson’s fingerprints and handwriting. Melanson’s
fingerprints were identified on five empty beer bottles and a rum bottle that were found
behind the bar at the time of the murder.4 A handwriting expert compared Melanson’s
writing sample to the signature on the credit card receipt for the gas that was purchased
for Andrews’ car after she was murdered. That analysis was inconclusive; there were
some similarities but the quality of the gas receipt was poor, and there were also
indications that Andrews’ forged signature was scribbled to disguise the writing.
       In January 2010, Detective Winegar showed David Luce a photo lineup containing
photographs of six men, including a 1975 photograph of Melanson. Luce looked at the
pictures for approximately 40 to 45 seconds and then identified Melanson as the man he
saw in Fagiani’s bar on July 10, 1974. Luce said that the eyes were what he remembered
most. However, he also admitted that he was not 100 percent sure that Melanson was the
man from the bar.
       On July 19, 2010, the Napa County District Attorney filed a complaint charging
Melanson with the first degree murder of Anita Andrews. In October 2010, the
complaint was substituted with an indictment, and a jury trial commenced in July 2011.
E.     The Uncharged Conduct Evidence
       In addition to the evidence summarized above, the prosecutor presented evidence
that, between 1962 and 1974, Melanson raped three women, Reba R., Katherine O., and
Sandra S., and that he murdered Michelle Wallace.


       4
         A previous analysis of Liston Biel’s fingerprints excluded him as a match with
any of the fingerprints recovered from the crime scene.


                                             6
       1.      The Two Rape Convictions
       The prosecutor presented documentary evidence that Melanson was convicted of
the March 29, 1962, rape of Reba R. and the February 20, 1974, rape of Sandra S. There
was no evidence about the circumstances of the Reba R. rape, other than that it happened
in Jefferson County, Texas, and that Melanson was punished for it. However, Sandra S.
appeared and testified at this trial.
       Sandra S. testified that she was 17 in February 1974 when Melanson pulled into a
gas station in Texas where she had stopped to look for gas. Sandra S. recalled that
Melanson looked “like an old cowboy” and that his hair was greasy and “slicked back.”
There was a gas shortage at the time and the station was closed, but Melanson said he
knew another place to get gas. He suggested Sandra S. follow him in case she ran out of
gas. As she was following, Melanson pulled over and gestured that he needed help. He
asked her to try to start his truck while he looked under the hood. As Sandra S. complied,
Melanson came over to the truck, pushed her down onto the floorboard and threatened to
kill her if she tried to get up. Melanson drove to an empty field, where he raped Sandra
S. several times. When she tried to hit the horn to get the attention of a car passing in the
distance, Melanson slapped her, tied her up with her pantyhose and a rope and gagged
and blindfolded her. Sandra S. testified that Melanson took her to a garbage dump where
he raped her again and repeatedly threatened to kill her. He then drove her to another
location, moved her to another car, and took her across the Louisiana border into the
swamps and woods. At the last location, he raped her repeatedly, and told her if she did
not enjoy it he would kill her. Sandra S. testified that Melanson was “frustrated and mad
and forceful.”
       After the last time Melanson raped her, Sandra S. began to talk to him and he
reacted as though he thought that they could become friends. Sandra S. offered to tell her
mother that she had tried to run away, and told Melanson her mother would believe her
because there were problems at home. Melanson told Sandra S. he would bring her to a
pay phone where she could call her father and, as they drove back to Texas, he showed
her his driver’s license. He also told her that he was the uncle of a girl she went to school


                                              7
with, and that he had been stalking her. Before letting her go, Melanson told Sandra S.
he would kill her if she reported him.
       2.     Katherine O.
       The prosecutor’s evidence that Melanson raped Katherine O. consisted of prior
testimony that Katherine O. gave at an August 1972 preliminary hearing in Texas. No
evidence was presented that Melanson was convicted of any crime against Katherine O.
       Katherine O. testified that on the evening of August 8, 1972, she was on her way
to a club in Orange, Texas, when her car got a flat tire. Two men in a pickup truck
stopped to offer assistance. The driver, Roy, was stocky with a beer belly. The
passenger was younger, around 22, slender, and had short hair. The two men checked her
spare tire, found that it was also flat and offered to drive her to get it fixed. En route,
Roy said he needed to change trucks and then drove to a house where they left the
passenger. Roy put the tire in a different truck and Katherine O. got in with him, thinking
they would head to the “Billups” to get the tire fixed. Instead, Roy drove to a secluded
area where he “lunged” at Katherine O., acting as though she would accept his advance.
When she questioned him, Roy said he was going to “fuck” her. Katherine O. resisted,
but the more she fought, the harder he fought back while using offensive language to
describe what he was going to do to her. At one point, Roy punched Katherine O. in the
face with a closed fist which stunned her, but she continued to resist until he twisted her
arm back and pinned her down. Then Roy “forcibly” removed her clothing by pulling
her pants completely off one leg and down to the knee of the other. He then repeatedly
raped and sodomized her and forced her to perform other sexual acts, all the time talking
to her and telling her to respect his wishes. This conduct went on for an hour and a half
until Roy finally climaxed.
       Katherine O. testified that, after Roy finished, he just sat there, at which point she
decided to try to humor him, hoping she might outwit him. She made him laugh and
offered him some tissue to clean himself. She threw the tissue out the window along with
her torn underwear so that it could be found later. After she put her pants on, Roy started
apologizing. Eventually, he drove to a gas station and arranged for someone to fix the


                                               8
tire. Roy then drove Katherine O. back to her car and changed her tire while she
memorized his license plate number. Roy apologized again and told Katherine O. he
would follow her onto the highway. As they began to drive in their separate cars, an
acquaintance of Katherine O.’s drove by and stopped to check on her, at which point Roy
drove away.
      3.      The Murder of Michelle Wallace
      The prosecution presented documentary evidence that in September 1993, a
Colorado jury found Melanson guilty of the 1974 murder of Michelle Wallace. The jury
heard about the circumstances surrounding that crime through the testimony of three
witnesses, Charles Mathews, Stephen Fry and Jimmie Smalley.5
      On August 29, 1974, Charles Mathews met Melanson at a bar in Gunnison,
Colorado. Melanson complained about a bear that was going after his horses, so he and
Mathews decided to go after the bear. They drove together to a cabin where Melanson
was staying. They had been drinking a lot and arrived late, so they went to sleep. The
next morning, Melanson and Mathews drank some beer, spent some time driving around
the cabin area and then headed back to Gunnison. On the way, they had car trouble and
started to walk. Michelle Wallace stopped and offered them a ride. Mathews rode in the
back with Wallace’s German Sheppard and Melanson rode in the front. Wallace dropped
Mathews off at the bar where he had met Melanson the night before. However,
Melanson asked Wallace to take him somewhere else and the two drove off together.
      Wallace, a free lance photographer, was reported missing on September 3, 1974.
Stephen Fry, the Undersheriff at the Gunnison County Sheriff’s Department, headed the
investigation into Wallace’s disappearance, which included an extensive air and land
search of the mountainous park areas in the region where Wallace backpacked, camped
and took photographs. When Charles Mathews heard a radio news report that Wallace
and her dog were missing, he contacted the sheriff’s department and reported that

      5
          The trial court admitted excerpts from testimony that Charles Mathews gave
during Melanson’s Colorado murder trial. Fry and Smalley appeared and testified at the
trial in this case.


                                            9
Wallace had given him and Melanson a ride. The investigation expanded to include a
search for Wallace’s red Mazda, and for Melanson, the last person to be seen with
Wallace.
       On September 12, 1974, Melanson was arrested in Pueblo, Colorado,
approximately 160 miles away from Gunnison. He’d been stopped by police because he
was driving an older model Cadillac that was reportedly involved in selling drugs near
the high school. A subsequent computer check revealed Melanson was wanted in
Gunnison.
       Pueblo Police Officer Jimmy Smalley interviewed Melanson who admitted he had
been in Gunnison and that he knew Michelle Wallace, but claimed not to know her well.
He said he had seen her hiking, and he knew she had a dog. But Melanson said he had
never seen Wallace in a car and claimed he did not know what a Mazda looked like. In
the Cadillac that Melanson had been driving, police found the registration for Wallace’s
Mazda, her insurance card and a Mazda tool kit. They also found a set of Wallace’s car
keys in the pocket of a pair of pants in a bag on the back seat of the car. Officer Smalley
also discovered that Melanson signed a pawn ticket in a Pueblo pawnshop on September
3, 1974, which he used to recover Wallace’s camera.
       The Pueblo police transferred Melanson and the evidence they had collected to the
sheriff’s office in Gunnison. Undersheriff Fry found additional pawn slips and other
papers belonging to Wallace in Melanson’s wallet. Melanson had pawned Wallace’s
sleeping bag and backpack in Cedar Falls, Iowa. Film from the camera that Melanson
had pawned in Pueblo contained a picture of Wallace, a picture of her dog and a picture
of Melanson with another woman in a motel room. At some point, Wallace’s car was
located in Amarillo, Texas. However, by the end of October, there was no evidence of a
body and the case went cold.
       In 1979, a scalp with braided hair was found in the Bracken Creek area of
Gunnison County. Analysts determined that the hair was human, but there was no DNA
analysis at that time. The Wallace case was reopened in the early 1990’s. In 1992, the



                                            10
remains of Wallace’s body were found in the same area where the scalp was previously
located.
                                     III. DISCUSSION
A.     The Uncharged Conduct Evidence
       Melanson’s primary contention on appeal is that all of the uncharged conduct
evidence should have been excluded from his trial. To support this claim of error,
Melanson makes three distinct arguments: (1) the Wallace murder should have been
excluded under Evidence Code sections 1101 and 3526; (2) the prior rape evidence
should have been excluded under section 352; and (3) section 1108 and a related jury
instruction regarding the use of evidence of uncharged sex offenses are both
unconstitutional.
       1.       Legal Principles
       Section 1101, subdivision (a) (section 1101(a)), establishes a general rule
excluding “evidence of a person’s character or a trait of his or her character . . . when
offered to prove his or her conduct on a specified occasion.” (See People v. Branch
(2001) 91 Cal.App.4th 274, 280 (Branch).) However, section 1101, subdivision (b)
(section 1101(b)), clarifies that this general rule does not exclude evidence of uncharged
conduct which is relevant to prove some fact other than bad character or criminal
disposition, like intent, common plan or identity. (§ 1101(b); People v. Ewoldt (1994) 7
Cal.4th 380, 393 (Ewoldt).)
       Furthermore, section 1101(a) is subject to statutory exceptions which may make
character evidence admissible, including section 1108, which states: “In a criminal
action in which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).)
       If a trial court determines that evidence of a criminal defendant’s uncharged
conduct is not excluded by the general rule codified in section 1101, the court must also

       6
           All further statutory references are to the Evidence Code.


                                              11
independently consider whether the evidence should be excluded pursuant to section 352.
(People v. Balcom (1994) 7 Cal.4th 414, 426 (Balcom).) Evidence must be excluded
under section 352 if its probative value is substantially outweighed by the probability that
its admission would “(a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)
       On appeal, we review rulings under sections 1101, 1108 and 352 for an abuse of
discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329 (Foster) [sections 1101
and 352]; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104 [sections 1108 and
352].) “ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be
disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice.” [Citation.]’ [Citation.]” (Foster, supra, 50 Cal.4th at pp. 1328-1329.)
       2.      The Trial Court’s Rulings
       In the present case, the prosecution moved to admit evidence of seven uncharged
acts. As reflected in our factual summary, the trial court admitted evidence of four of
those seven incidents.
       The trial court found that evidence of the 1962 rape of Reba R. was relevant under
section 1108 as a prior sex offense, and was not excluded by section 352. The court
reasoned that the incident was not too remote; the fact that there was a conviction
established both certainty and prior punishment; and presenting the evidence would not
be unduly time consuming because the prosecutor agreed to limit evidence to
documentary proof of the conviction and punishment.
       The trial court also admitted evidence of the 1972 rape of Katherine O. and the
1974 rape of Sandra S. under section 1108 and found that neither incident was excluded
by section 352. The Sandra S. rape was committed six months before the charged
offense, was a prior sexual act, resulted in a conviction, and none of the section 352
factors weighed in favor of exclusion. As for the Katherine O. case, the court weighed
the fact that Melanson had not been punished for that offense, but it concluded that the
incident was more probative than prejudicial. The court noted, among other things, that


                                               12
the incident was close in time, involved a Caucasian woman who was a stranger to the
defendant, and the victim’s clothes were partially removed during the sexual assault.
       Finally, the court found that the 1974 murder of Michelle Wallace was admissible
under section 1101(b) as probative of a common plan or scheme and that it was not
excluded by section 352. The court reasoned that the two murders were committed
within a six-week time period and, in both cases, the defendant got the woman alone,
attacked and killed her. In concluding that the probative value was not outweighed by the
danger of unfair prejudice, the court noted that neither murder was more inflammatory
than the other, and the evidence would show that Melanson had already been punished
for the Wallace murder.
       However, the trial court excluded evidence of three other uncharged crimes: a
June 1962 sexual assault of Sandra C., Melanson’s 16-year-old cousin; the July 1988
disappearance and presumed murder of Pauline Klump; and the August 5, 1988, sexual
assault and murder of Charlotte Sauerwin. The trial court excluded evidence of these
three offenses pursuant to section 352. The court was concerned that the jury would be
inflamed by the facts of the Sandra C. case, noting the victim’s youth and the fact that
Melanson had not been punished for this offense. In the Klump case, there was no
evidence of a sex crime since a body was never found and the probative value was low
because, as the court found, “[w]e don’t really know what happened.” Finally, the
Sauerwin incident was relevant under section 1108 as a prior sex offense and under
section 1101 as evidence of a common plan. However, there was no prior conviction, a
mini trial might be necessary to prove the offense, and the jury might be overwhelmed by
the number of uncharged crimes that Melanson had committed. Ultimately, the court
concluded that the probative value of the Sauerwin evidence was outweighed by the
substantial danger of undue prejudice and confusing the issues.
       3.     The Wallace Murder
       Melanson contends that the Wallace murder was bad character evidence under
section 1110(a) and that it was not admissible under section 1101(b) to prove a common
design or plan because that crime was not sufficiently similar to the charged murder of


                                            13
Anita Andrews. Alternatively, Melanson argues that this uncharged misconduct should
have been excluded under section 352.
       Uncharged act evidence is relevant to prove a common plan when “the uncharged
misconduct and the charged offense are sufficiently similar to support the inference that
they are manifestations of a common design or plan.” (Ewoldt, supra, 7 Cal.4th at p.
402.) The charged and uncharged acts need not be part of a “single, continuing
conception or plot.” (Id. at p. 401.) However, the evidence must “demonstrate ‘not
merely a similarity in the results, but such a concurrence of common features that the
various acts are naturally to be explained as caused by a general plan of which they are
the individual manifestations.’ [Citations.]” (Id. at p. 402.) Furthermore, although the
“common features must indicate the existence of a plan rather than a series of similar
spontaneous acts, . . . the plan need not be unusual or distinctive; it need only exist to
support the inference that the defendant employed that plan in committing the charged
offense. [Citation.]” (Id. at p. 403.)
       In the present case, the Wallace murder and the murder of Anita Andrews shared
significant common features. In both cases, Melanson gained the trust of his victim;
Wallace agreed to drive him somewhere alone after dropping Mathews off at the bar, and
Andrews told Luce that Melanson was her boyfriend. In both cases, Melanson was the
last person seen with the victim before she died; Wallace and Melanson were alone
together in a car, and Andrews and Melanson were alone together in a bar at closing time.
In both cases, there was evidence that Melanson killed his victim, took personal
belongings from her, and took her car. Finally, in both cases, Melanson lied to
authorities about his prior association with the victim; he told Detective Winegar that he
had never been in the bar where Andrews was killed and he told Officer Smalley that he
had never been in Wallace’s car. Indeed, both denials were unnecessarily exaggerated.
Melanson told Winegar that he did not know where Napa was and he told Smalley that he
did not know what a Mazda was.
       On appeal, Melanson contends the Wallace murder was materially different than
the Andrews murder because he was with another man when he met Wallace and he was


                                              14
alone at the bar when he met Andrews. Actually, there is no evidence about how
Melanson first met Andrews. Regardless, this irrelevant detail does not alter the common
features summarized above including that Melanson was the last person seen with the
victim and the victim was left alone with him under circumstances which made her
vulnerable to attack.
       Melanson also contends that the Colorado case is not sufficiently similar to the
charged murder because there was no evidence about how Wallace was killed; in contrast
to the present case, there was no evidence that Wallace was physically or sexually
assaulted. Preliminarily, we note that evidence Wallace’s scalp was discovered many
years before investigators found her other remains is consistent with the conclusion that
she, like Andrews, was the victim of homicidal violence. In any event, Melanson cannot
undermine the trial court’s discretionary ruling simply by identifying this one
distinguishing feature of the Wallace murder. The fact that Melanson hid Wallace’s body
so well that it decomposed before her cause of death could be conclusively determined
does not preclude the inference of a common general plan in light of the other similarities
we have already mentioned.
       The common features of these two crimes support the inference that Melanson had
a plan to assault, murder and steal from vulnerable unsuspecting women. The fact that
Melanson implemented that plan in the Wallace case is relevant to show that he used the
same general plan a few months earlier when he killed Anita Andrews. Therefore, we
reject Melanson’s contention that the trial court erred by finding that evidence of the
Wallace murder was not excluded by the general rule codified in section 1101(a).
       For similar reasons, we reject Melanson’s alternative theory that evidence of the
Wallace murder should have been excluded under section 352. This argument rests on
the same erroneous premise that these two murders were “quite dissimilar.” Furthermore,
Melanson makes the unsupported assumption that the jury was unfairly prejudiced
against him because of the “reassurance” that another jury had found Melanson guilty of
the Colorado murder. As our Supreme Court has recognized, the fact that uncharged
conduct resulted in a criminal conviction and substantial punishment decreases the


                                             15
potential for prejudice, undue consumption of time, or confusing the issues in at least two
ways. (Balcom, supra, 7 Cal.4th at p. 427.) First, the jury will not be tempted to convict
the defendant of the charged offense, regardless of guilt, in order to punish him for the
uncharged offense, because the jury will know he has already been sentenced to prison
for the uncharged crime. Second, the jury’s attention will not be diverted to a
determination whether or not defendant committed the uncharged crime because that fact
has already been established by the prior conviction. (Ibid.)
       Melanson also argues that the danger of unfair prejudice was heightened because
the evidence against him in the Wallace case was “much stronger” than the evidence that
he killed Anita Andrews. For the record, we disagree with the factual predicate of this
argument; Melanson consistently undervalues the strength of the evidence that he killed
Andrews. Indeed, absent any sufficiency of the evidence claim on appeal, we take it as
undisputed that the record supports the jury’s finding that the prosecution proved beyond
a reasonable doubt that Melanson murdered Anita Andrews. Furthermore, and in any
event, the strength of the evidence supporting the charged offense is not a relevant factor
under section 352. “The supposed weakness of the rest of the case would be relevant to
the question of prejudice if there were error, but it provides no reason to exclude this
particularly probative evidence.” (People v. Loy (2011) 52 Cal.4th 46, 64.)
       We conclude that the Wallace murder was probative of a common plan and that
the trial court’s decision to admit that evidence was supported by a thorough and careful
consideration of the section 352 factors. Finding no basis to question the trial court’s
sound exercise of its discretion, we reject Melanson’s contention that the trial court
committed reversible error by admitting evidence of the Wallace murder.
       4.     The Other Rape Evidence
       Melanson does not dispute that evidence of his uncharged rapes was relevant to
prove that he intended or attempted to sexually assault Anita Andrews. (§ 1108.)
However, he maintains that the trial court abused its discretion and committed reversible
error by failing to exclude evidence of these rapes pursuant to section 352.



                                             16
       Section 1108 expands “the admissibility of disposition or propensity evidence in
sex offense cases.” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “The
effect of section 1108 was ‘to assure that the trier of fact would be made aware of the
defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.
In this regard, section 1108 implicitly abrogates prior decisions . . . indicating that
“propensity” evidence is per se unduly prejudicial to the defense. [Citation.]’
[Citation.]” (Branch, supra, 91 Cal.App.4th at p. 281.)
       “By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence
unduly prejudicial per se, but must engage in a careful weighing process under section
352.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.) This “careful weighing process”
ensures that section 1108 will be applied in a manner that does not violate the defendant’s
due process rights. (Id. at p. 917.) Factors to consider when evaluating an uncharged
sexual offense evidence under section 352 include (1) its nature, relevance, and possible
remoteness, (2) the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jury, (3) its similarity to the charged offense, (4) its likely
prejudicial impact, and (5) the availability of less prejudicial alternatives, like excluding
irrelevant inflammatory details or admitting some but not all of the other sex offenses.
(Id. at pp. 916-917.)
       The record before us confirms that the trial court engaged in the careful weighing
process that section 352 requires. It admitted evidence of some, but not all, of
Melanson’s other sex offenses. Two of the three incidents that were admitted were
supported by prior convictions, which reduced the burden on defendant and the danger of
undue prejudice. The court limited evidence of the Reba R. case to the conviction itself
and the Sandra S. testimony was brief, direct and clearly probative, not just of
Melanson’s propensity to commit a sex offense but also of his general plan to gain the
trust of unsuspecting female victims. Furthermore, while the Katherine O. case was not
supported by a prior conviction, the probative value of that evidence was very high in
light of the similarities to the charged offense. In both cases, Melanson was physically
violent, punched his victim in the face with a closed fist, and removed her pants and


                                               17
underclothes from only one leg during the assault. Furthermore, the trial court guarded
against undue prejudice by (1) excluding evidence that Melanson was held to answer for
the Katherine O. rape; and (2) permitting the defense to introduce substantial excerpts
from cross-examination testimony that Katherine O. gave at the preliminary hearing.
       On appeal, Melanson contends that the prior rape evidence was unduly prejudicial
because of the “great disparity in the strengths of the evidence in the current case
compared to the prior cases.” As we have already explained, evidence Melanson killed
Andrews was much stronger than he admits and, in any event, its overall strength was not
relevant to a section 352 analysis of the uncharged conduct. Furthermore, the fact that
evidence of the uncharged rapes was strong does not mean it was unduly prejudicial.
“ ‘Evidence is not prejudicial, as that term is used in a section 352 context, merely
because it undermines the opponent’s position or shores up that of the proponent. The
ability to do so is what makes evidence relevant. The code speaks in terms of undue
prejudice. . . .’ . . . [¶] ‘The prejudice that section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence.’ [Citations]. ‘Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]” (Branch, supra, 91 Cal.App.4th at p. 286.)
       Melanson argues that the prior rape evidence was inflammatory because it made
him appear “vicious and dangerous,” but those crimes were not more inflammatory than
the brutal assault and murder of Anita Andrews. Furthermore, to the extent the prior
offenses portrayed Melanson as vicious and dangerous they shared that quality with the
charged offense. In other words, that factor made the evidence more probative as
opposed to unduly prejudicial. Melanson also claims, but does not establish, that the
uncharged rape evidence was overwhelming and confusing to the jury. The number of
uncharged acts that were admitted cannot be considered in a vacuum; the court excluded
almost as many acts as it admitted notwithstanding that the number of other offenses was
itself probative evidence. Furthermore, we find no indication in this record that the jury
was confused about any issue material to the judgment in this case.


                                               18
       Melanson also contends that the uncharged rapes should have been excluded
because they were not sufficiently similar to the charged crime. To support this
contention, Melanson relies on People v. Harris (1998) 60 Cal.App.4th 727 (Harris). In
that case, a mental health nurse was convicted of sex offenses based on allegations that he
took advantage of two vulnerable women in his care. (Id. at p. 730.) On appeal, the
defendant argued the trial court abused its discretion under section 1108 by admitting
evidence of a violent sexual crime he committed 23 years before the charged crimes. (Id.
at pp. 733-734.) That evidence included testimony by police officers who described
finding the victim in her home, severely beaten, naked from the waist down, with blood
on her vagina, mouth and face who “ ‘appeared to be unconscious,’ ” and finding the
defendant, whose crotch was bloody, hiding nearby. (Id. at pp. 734-735.) The Harris
jury was also told that, as a result of this prior conduct, the defendant was convicted of
first degree burglary with the infliction of great bodily injury. (Ibid.)
       The Harris court held that the trial court abused its discretion under section 1108
and 352 by admitting this prior act evidence. (Harris, supra, 60 Cal.App.4th at pp. 740-
741.) The court reasoned that the evidence was “inflammatory in the extreme,” the
remoteness of the crime weighed heavily in favor of exclusion, the stipulation that the
defendant was convicted of burglary left the jury to speculate about whether he had been
punished for rape, and evidence of the prior violent sex offense had little relevance to the
charged “ ‘breach of trust’ sex crimes.” (Id. at pp. 738, 740.) With regard to this last
factor, the court noted that the charged offenses were “of a significantly different nature
and quality than the violent and perverse attack on a stranger that was described to the
jury.” (Id. at p. 738.) Admitting that evidence, the court found, “did little more than
show defendant was a violent sex offender,” as it was not relevant to either bolster the
credibility of the victims of the charged offenses or to detract from the evidence
impeaching their testimony. (Id. at p. 740.)
       Melanson argues his uncharged sex offenses are no more probative than the prior
sex offense in Harris, pointing out that his other victims were younger than Andrews,
that he took them to secluded places as opposed to a public bar, and that he did not kill


                                               19
them. This argument is legally and factually flawed. First, as a legal matter, numerous
section 352 factors that weighed in favor of exclusion in Harris support the trial court’s
contrary conclusion in this case. Here, Melanson’s prior offenses were not inflammatory,
remote, or misleading. Furthermore, the court guarded against the danger of unfair
prejudice by limiting evidence of the Reba R. rape to the fact of conviction and
punishment, admitting evidence that Melanson was punished for the Sandra S. rape, and
granting a defense motion to exclude evidence that Melanson was held to answer for the
Katherine O. rape, so the defense could develop its theory that Melanson was not guilty
of that offense at all.
       Second, and in any event, Melanson’s assessment of the probative value of his
uncharged rapes is patently unreasonable. Contrary to his contention on appeal, the
storeroom at Fagiani’s bar was a secluded place. Furthermore, the evidence showed that,
although Melanson did not kill the victims of these other crimes, he threatened to kill
both Katherine O. and Sandra S., he employed violence to strengthen those threats, and
both victims submitted to his will because they believed they would have died if they had
not.
       Melanson argues that the Katherine O. rape was “particularly lacking in probative
value” because the evidence that he was the perpetrator of that crime was extremely
weak. To support this contention, Melanson relies on an excerpt from Katherine O.’s
preliminary hearing testimony when she was asked to point out the person that had been
driving the truck that stopped to offer assistance with her flat tire. It appears that she
pointed out a person other than the defendant who was sitting in the courtroom. The
prosecutor responded that he did not know that person’s name. This particular excerpt is
vague; it is not clear if Katherine O. misheard the question and thought she was supposed
to identify the passenger of the truck, or if she really did identify someone other than
Melanson as the person who drove the truck. What is clear, though, is that whatever the
confusion at that hearing, sufficient evidence was presented to hold Melanson to answer
for the Katherine O. rape.



                                              20
       When viewed as a whole, the evidence supports the trial court’s discretionary
decision to admit evidence of the Katherine O. rape. As we have already noted, that
incident was highly probative because of striking similarities with the present case,
including that both victims were isolated and vulnerable, that they were punched in the
face, and that their pants and undergarments were removed from just one leg during the
assault. To the extent Melanson is arguing that Katherine O.’s possible misidentification
of someone other than the defendant at the preliminary hearing was relevant, the jury
heard that testimony and the defendant’s interpretation of it. Furthermore, the trial court
granted a defense motion to exclude evidence that he was held to answer for the
Katherine O. rape, which further strengthened his theory in the present case that he did
not rape Katherine O. Finally, the trial court instructed the jury that it could not consider
evidence of the Katherine O. rape unless the prosecutor proved by a preponderance of the
evidence that Melanson committed that crime, that if the prosecutor carried that burden
the jury could still disregard the Katherine O. evidence and that if the jury elected to
consider the Katherine O. evidence it was only one factor and not sufficient by itself to
prove that Melanson committed the charged offenses.
       Melanson argues that, in evaluating the trial court’s rulings under section 352, we
must consider the cumulative impact of the uncharged conduct evidence. As we have
already demonstrated, every individual ruling was supported by a reasoned section 352
analysis. Furthermore, when viewed as a whole, the other act evidence covered roughly
half of Melanson’s prior offenses, all of which was potentially relevant evidence in this
case. Yet, the trial court took steps to guard against unfair prejudice by limiting both the
number of uncharged acts that were admitted and the evidence about the nature of those
acts. Under all of the circumstances, we conclude that Melanson has failed to establish
that the trial court abused its discretion in any way. 7



       7
         Because we find that the trial court properly exercised its discretion under
section 352, we need not address Melanson’s related contention that the allegedly
erroneous evidentiary rulings were so prejudicial they violated Melanson’s due process

                                              21
       5.     Section 1108 and CALCRIM No. 1191
       Melanson’s final argument with respect to the uncharged conduct evidence is that
section 1108 and CALCRIM No. 1191 “are facially unconstitutional” because they
permit the trier of fact to use the defendant’s uncharged crimes as dispositional evidence.
       “Evidence Code section 1108 allows bad conduct evidence to be admitted to prove
‘predisposition’ to commit sex crimes.” (Harris, supra, 60 Cal.App.4th p.730.) This
legal rule is reflected in CALCRIM No. 1191, which the trial court used to instruct the
jury about the uncharged sexual offense evidence that was admitted in this case. That
instruction stated, in part: “If you decide that the defendant committed the uncharged
offenses, you may, but are not required to, conclude from that evidence that the defendant
was disposed or inclined to commit sexual offenses, and based on that decision, also
conclude that the defendant was likely to commit and did commit rape or attempted rape.
If you conclude that the defendant committed the uncharged offenses, that conclusion is
only one factor to consider along with all the other evidence. It is not sufficient by itself
to prove that the defendant is guilty of murder of Anita Andrews.”
       On appeal, Melanson does not challenge any specific language in CALCRIM No.
1191 but simply objects to it on the ground that it implements the exception codified in
section 1108 authorizing jury consideration of “disposition” evidence. However,
Melanson also concedes that the California Supreme Court considered and rejected his
constitutional argument in Falsetta, supra, 21 Cal.4th 903. Since Falsetta is binding on
this court, we summarily reject Melanson’s facial challenges to section 1108 and
CALCRIM No. 1191. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)




right to a fair trial. We note for the record that the People contend Melanson waived this
claim of error.


                                             22
B.      Precharging Delay
        1.     Issue Presented and Standard of Review
        Melanson contends that the trial court erroneously denied his motion to dismiss
this case for precharging delay, i.e. the delay between the murder and the time the state
first charged him for it.
        “Although precharging delay does not implicate speedy trial rights, a defendant is
not without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due
process protects a criminal defendant’s interest in fair adjudication by preventing
unjustified delays that weaken the defense through the dimming of memories, the death
or disappearance of witnesses, and the loss or destruction of material physical evidence.’
[Citation.] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested
or the complaint is filed may constitute a denial of the right to a fair trial and to due
process of law under the state and federal Constitutions. A defendant seeking to dismiss
a charge on this ground must demonstrate prejudice arising from the delay. The
prosecution may offer justification for the delay, and the court considering a motion to
dismiss balances the harm to the defendant against the justification for the delay.’
[Citation.]” (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)
        “We review for abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].” (People v. Cowan (2010) 50 Cal.4th 401,
431.)
        2.     Background
        On September 8, 2011, Melanson filed a motion to dismiss this case because of the
36-year delay between the Andrews murder and the filing of charges against him. He
argued that prejudice was presumed in light of the length of the delay and the
prosecutor’s negligence. According to Melanson, the State was negligent in failing to
identify him earlier because (1) his fingerprints were on record in several states since
before this crime occurred in 1974; and (2) it took too long to conduct DNA analysis on
the crime scene evidence. Melanson also claimed actual prejudice because several


                                              23
witnesses who had died could have aided his defense. The only specific witness
Melanson discussed was Paul Grenier, who allegedly saw someone driving Andrews’ car
after the murder and helped create a composite sketch that did not look like Melanson.
       The People opposed the motion to dismiss on the ground that “[t]he precharging
delay was justified because law enforcement did not have enough evidence until the 2009
comparison of the crime scene evidence with the defendant’s DNA resulted in a match.”
To support this proffered justification, the prosecutor outlined the following relevant
events: Fingerprint evidence collected from the crime scene was used to conduct
database searches in 1984, 1989 and 1990. The searches included California and were
expanded to other western states but not ever to Colorado. The case went cold and was
not reopened until late 2001 when Officer Jerich attended a cold case homicide training
and was encouraged to consider pursuing DNA evidence. A few crime scene items were
submitted in December 2001, but the DOJ criminalist did not begin the DNA testing until
January 2004 because of the large backlog of cases. At that point, Liston Biel, who was
still the prime suspect, was excluded as the source of the DNA samples, and the case
went cold again. In 2006, a new officer was assigned to the case, additional evidence
was analyzed, and the database hit that led to Melanson was made in October 2009. The
DNA match was confirmed in December 2009 and, over the next eight months,
investigators shored up the case against Melanson.
       In opposing the motion to dismiss, the People also argued that Melanson failed to
carry his burden of showing actual prejudice and that, even if prejudice was
demonstrated, the delay was justified because it “was the result of limitations of forensic
technology and insufficient evidence to identify defendant as a suspect.”
       The trial court denied the motion to dismiss in a written order filed September 20,
2011. The court reasoned that Melanson’s showing of actual prejudice resulting from the
interim death of potential witnesses was minimal because the claim that any of these
witnesses could aid the defense was “speculative at best.” By contrast, the justification
for the delay in this case was strong because “there was no basis to suspect defendant of
this crime without DNA evidence,” and, once the DNA match was found, there was only


                                            24
a short period before the prosecution obtained the additional evidence necessary to
support the charges. The trial court also found that the delay was solely an “investigative
delay,” and that courts should not second-guess prosecutorial decisions about how to
investigate a given case, how to allocate state resources, or when they have sufficient
evidence to bring criminal charges. Ultimately, the court concluded that “balancing the
prejudice defendant has demonstrated against the strong justification for the delay, the
court finds no due process violation.”
       3.     Analysis
       Balancing Melanson’s showing of prejudice from the delay in charging him with
Andrews’ murder against the justification for that delay, we affirm the trial court’s
determination that Melanson failed to establish that his due process rights were violated
by the precharging delay.
       First, Melanson’s showing of prejudice was very weak. His theory that prejudice
was presumed from the length of the delay was legally unsound. “To avoid murder
charges due to delay, the defendant must affirmatively show prejudice.” (Nelson, supra,
43 Cal.4th at p. 1250.) Furthermore, Melanson’s factual showing that some potential
witnesses had died was not compelling because he failed to address how any of those
witnesses could have impacted this case. On appeal, Melanson does not specifically
address any given witness but claims only that the court “unduly minimized the
importance of the lost witnesses . . . .” This generic complaint, unsupported by any
discussion of the evidence itself, is simply not sufficient to establish an abuse of
discretion.
       Second, the record supports the trial court’s finding that the justification for the
delay in charging Melanson was very strong. As the trial court observed, the 2009 DNA
cold case hit was the first evidence that linked Melanson to this crime; before that he was
not a suspect. After that, there was a very short period while the prosecutor collected
additional evidence before the charges were brought.
       On appeal, Melanson challenges the justification for the delay by claiming that
this case “did not need to await DNA science” because fingerprints on the beer bottles


                                             25
and the rum bottle “also tied appellant to the scene of the crime.” Melanson maintains
his fingerprints were “on record” in several states when Andrews was murdered and
concludes that the prosecution could and should have identified him as a suspect at a
much earlier date simply by broadening their database searches. Although Melanson
fails to cite evidence that his fingerprints were “on record” in “several” other states, the
People concede they were on record in Colorado. However, Melanson does not identify
any evidence that was available to investigators before the DNA hit was made which
even suggested that Andrews’ murderer had fled to Colorado.
       If Melanson is suggesting that due process requires that law enforcement must, as
a matter of course, search every database in the country whenever it finds a fingerprint at
a crime scene, he is mistaken. “A court may not find negligence by second-guessing how
the state allocates its resources or how law enforcement agencies could have investigated
a given case. . . . ‘Thus, the difficulty in allocating scarce prosecutorial resources (as
opposed to clearly intentional or negligent conduct) [is] a valid justification for
delay . . . .’ [Citation.] It is not enough for a defendant to argue that if the prosecutorial
agencies had made his or her case a higher priority or had done things a bit differently
they would have solved the case sooner.” (Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
       Melanson contends that, even if “it was not negligent to [not] run the fingerprints
through other databases, the justification for the delay is still wanting as there was no
non-negligent reason for the later delays in obtaining the DNA analysis.” To support this
argument, Melanson makes numerous assumptions about when advancements in DNA
science were available to Napa County investigators and how those advancements should
have been utilized in this specific case. These types of assumptions are precisely the type
of second-guessing that courts are not willing to make.
       Finally, even if there was some element of negligence, that would not be sufficient
to establish error on appeal. When there is evidence of a purposeful delay, a weak
showing of prejudice may suffice, but when “the delay was merely negligent, a greater
showing of prejudice would be required to establish a due process violation.” (Nelson,
supra, 43 Cal.4th at p. 1256.) In the present case, the record supports the trial court’s


                                              26
conclusion that Melanson’s showing of prejudice was extremely weak. Thus, as the trial
court found, Melanson failed to establish that the precharging delay violated his rights to
due process.
C.      The 2010 Photographic Lineup
        1.     Issue Presented
        Melanson contends that his due process right to a fair trial was violated because
the trial court denied his pretrial motion to exclude evidence that David Luce identified
him in a 2010 photographic lineup as the man Luce saw in the bar with Andrews in 1974.
        “ ‘Due process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the resulting
identification was also unreliable.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680,
698 (Avila).) “Defendant bears the burden of showing unfairness as a demonstrable
reality, not just speculation. [Citation.] ‘The issue of constitutional reliability depends
on (1) whether the identification procedure was unduly suggestive and unnecessary
[citation]; 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 criminal at the time of the crime, the witness’s degree of attention,
the accuracy of [his] prior description of the criminal, the level of certainty demonstrated
at the confrontation, and the time between the crime and the confrontation [citation]. If,
and only if, the answer to the first question is yes and the answer to the second is no, is
the identification constitutionally unreliable. [Citation.]” (People v. DeSantis (1992) 2
Cal.4th 1198, 1222.)
        “We independently review ‘a trial court’s ruling that a pretrial identification
procedure was not unduly suggestive.’ [Citation.]” (Avila, supra, 46 Cal.4th at pp. 698-
699.)
        2.     Background
        As noted in our factual summary, in January 2010 Detective Winegar showed
David Luce a photographic lineup of six suspects including Melanson. All of the



                                              27
photographs were black and white, were cut off just below the neck and were printed
from Winegar’s computer in the same manner.
       The photograph of Melanson that was used in the lineup was taken on April 4,
1975. The other photographs were not from that same time period because Detective
Winegar used other individuals who were the most similar looking to Melanson and he
could not find older photographs that fit that requirement. The photograph of Melanson
was digitally altered to remove markings in the background so that the background of his
photograph would be “clear” like the background in the other photographs that were used
in the lineup.
       Before Winegar showed the line-up to David Luce, he read a standard admonition
which, among other things, advised Luce that the group of photographs “may or may not
contain the picture of the person who committed the crime” and that he should disregard
“differences in the type or style of the photographs.” At trial, Luce testified that Winegar
did not do anything during the lineup procedure to suggest that Luce should select a
particular photograph. Luce, who had looked at other lineups and composites over the
years, selected Melanson’s photograph although he was not 100 percent sure.
       3.        Analysis
       After independently reviewing evidence of the pretrial identification procedure
that Detective Winegar employed, we affirm the trial court’s ruling that admitting
evidence of the results of that lineup did not violate due process. First, using a
photograph of Melanson from the 1970’s was absolutely necessary under the
circumstances of this case, involving a 36-year-old cold case murder. Second, Winegar
took steps to ensure that Melanson’s photograph would not stand out, including using all
black and white photographs, eliminating most of the clothing from the pictures, digitally
altering the background of Melanson’s photo so that it matched the others, and printing
all of the photographs from the same computer.
       We also find that, under the totality of the circumstances, the identification
procedure that Detective Winegar employed was reliable. There is no dispute on appeal
that Winegar selected photographs of similar looking individuals. He used identical


                                             28
backgrounds and printed all of the pictures from the same computer in the same way. He
gave a standard admonition and did not do anything to persuade Luce to select any given
photograph.
       On appeal, Melanson argues that his photograph “obviously taken in the 1970s—
was inherently suggestive” because it came from the time of the offense while the others
did not. Specifically, Melanson contends that his wide shirt collar and vest “harkened
back to the 1970s,” while the other men in the lineup wore modern looking shirts; his
photograph was grainier than the others; and his long sideburns strongly suggested that
his picture was taken at around the time of the offense.
       We have looked at the photographic lineup, which was admitted into evidence as
trial exhibit 72.8 We agree that Melanson’s shirt collar, if viewed in isolation, does
appear old fashioned, although most of his clothing was cropped out of the picture. More
importantly, neither the clothing nor hair styles of any other man in the line-up were
distinctly “modern.” Furthermore, it does not appear to us that Melanson’s photograph
had a distinctive “grainier” quality. Rather, all of the photographs are black and white
and appear to share the same background.
       “The question is not whether there were differences between the lineup
participants, but ‘whether anything caused defendant to “stand out” from the others in a
way that would suggest the witness should select him’ [Citation.]” (Avila, supra, 46
Cal.4th at p. 698.) We do not find that the use of Melanson’s 1975 photograph made him
“stand out” from the others in a way that would have unfairly suggested to Luce that he
should select that photograph. Furthermore, when viewed as a whole, the procedure that
Detective Winegar employed was reliable. Therefore, we reject Melanson’s claim that
his constitutional rights were violated because the court admitted evidence of the results
of the 2010 photographic lineup.




       8
        The People mistakenly contend that the lineup has not been made a part of the
record on appeal.


                                             29
                                 IV. DISPOSITION
     The judgment is affirmed.




                                            _________________________
                                            Haerle, Acting P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




                                       30
