Filed 5/31/12




         IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S173973
           v.                        )
                                     )                       Ct.App. 4/1 D052091
JOAQUIN MENA,                        )
                                     )                        San Diego County
           Defendant and Appellant.  )                    Super. Ct. No. SCD205930
____________________________________)

         When a trial court denies a defendant‟s motion for a physical lineup and the
defendant does not seek writ review of that ruling, is the defendant barred from
raising the issue on postjudgment appeal? The Court of Appeal said yes,
reasoning that a failure to challenge the ruling by writ undermines the purpose of
the lineup right conferred under Evans v. Superior Court (1974) 11 Cal.3d 617
(Evans) and prevents the reviewing court from fashioning relief if it finds error.
Although writ review may be the more effective means of protecting a defendant‟s
right to a lineup, we decline to impose a writ requirement as a prerequisite to
raising the issue on appeal. The right to appeal after judgment is statutory. We
have historically been hesitant to create procedural bars to the exercise of that
right.
         Alternatively, the Court of Appeal assumed the issue was preserved and
that the trial court erred. The Court of Appeal properly concluded that any error
was harmless. Accordingly, the judgment is affirmed.
         In reaching this conclusion, we clarify the source of the due process right
relied on by the Evans court to require a lineup in appropriate cases. The Evans

                                           1
rule is based on state due process. Therefore error is reviewed under People v.
Watson (1956) 46 Cal.2d 818 (Watson).
                 I. FACTUAL AND PROCEDURAL BACKGROUND
       Around 5:00 p.m. on April 13, 2007, 15-year-old Jesus C. and 17-year-old
Jonathan F. were walking to Jonathan‟s home. As they crossed the street, a red
Ford travelling toward them stopped in the intersection. A white car followed a
few seconds later and also stopped in the intersection. The occupants of both cars
were young Hispanic men with shaved heads or short hair. One of the men got out
of the red car, approached the boys and yelled, “How‟s the East Side life treating
you?” Jesus knew he was in an area claimed as “East Side” gang territory and
believed the man was asking whether he was in a gang. Both boys answered that
they did not “bang,” meaning they were not in a gang. The man ran forward and
swung his fist at Jesus, who backed up to dodge the blow.
       The occupants of both cars got out and the boys ran. Some of the men from
the red car chased them. Jesus could not recall how many ran after him, but
believed it might have been two. As he ran, Jesus looked back “a couple of
times.” One man got within two feet and swung a knife at him. The man yelled,
“Stop running or I‟m going to shank you.” Jesus kept running for half a block
until he realized he was no longer being chased. He turned and saw the men
running back to the cars. One of the men carried a black bat.
       Jonathan testified that the men from the red car were within 12 to 14 feet of
them when the boys started to run. The boys ran in different directions. Jonathan
saw one man chasing Jesus. Three men chased Jonathan. One had a baseball bat
and another held a knife. Jonathan was struck in the head with the baseball bat.
Taken to the hospital, he received stitches for a wound above his ear.
       Around 6:00 p.m., two investigating officers saw a red Ford parked about
three blocks from the intersection where the boys had been approached. No
evidence was presented at trial linking the car to the assault. The officers saw four
Hispanic men, including defendant Joaquin Mena, sitting in the front yard of a


                                          2
nearby house. When the officers approached, two of the men ran inside.
Defendant and Jorge Lopez remained in the yard, sitting in chairs bearing East
Side gang graffiti. The officers recovered a steak knife from defendant‟s pocket.
       Inside the house, the officers found Adrian Pasillas hiding under the covers
of a bed. Pasillas looked like he had been in a fight, with abrasions on his head
and dried blood on his face and shirt. The officers found two bats in the side yard
next to a can of black spray paint. Both bats had been recently painted.
       Officer Martha Gasca met with Jesus and asked whether he would view a
curbside showup. Jesus was nervous and somewhat afraid, telling Gasca that his
neighbor had been killed recently after testifying in court. Jesus agreed to go with
her but, while being driven to the showup, covered his face with the hood of his
sweatshirt and lay down in the backseat. They arrived at the location of the
showup around 7:00 p.m., when it was still light.
       During the showup, Jesus remained in the back of the patrol car. One
officer stated the car was parked about 35 feet from the suspects; another officer
described the distance as 15 to 20 feet. The showup included defendant, Lopez,
and Pasillas, along with Robert Ferguson, the other man who had run into the
house, and Ricardo Sanchez, who was also found in the residence. Before the men
were presented, Jesus was read an admonition that included an advisement that he
was not obligated to identify anyone. Each suspect was then presented
individually, and turned so that Jesus could see him from the front, side, and back.
Jesus testified at trial that he pulled his hat down and crouched as low as possible
behind the front seat of the police car during the showup. He did not tell Officer
Gasca that he had any difficulty seeing the suspects, although he testified that the
men were “far away.” Jesus identified defendant, Lopez, Pasillas, and Sanchez.
Referring to defendant Mena, Jesus said, “Yes.” As to Lopez, he said, “Yes, he
was there too.” Jesus specifically identified Pasillas as the man with the knife.
Jesus said that Sanchez was the last man to get out of the car. He said that during
the incident he did not see Ferguson, who is White.


                                          3
       On May 9, 2007, the police met with Jonathan and showed him four
photographic lineups, one for each of the men Jesus had identified. Jonathan
identified only defendant‟s photograph, stating that it “looked like” one of the men
in the red car, but he was not sure.
       All four of the men identified at the showup were jointly charged. Before
the preliminary hearing, codefendant Lopez sought an order directing the police to
conduct a physical lineup for Jesus to attend. Defendant joined in the motion.
Lopez argued there was a reasonable likelihood of misidentification based on
Jesus‟s brief opportunity to see his assailants; his failure to provide any details as
to “clothing, [t]attoos, jewelry, [or] piercings”; and his initial statement that he
might “possibly” identify the men if he saw them again. Lopez argued that the
curbside showup, in which Jesus was shown four Hispanic males of similar dress,
hairstyles, and facial hair, was suggestive.1 The trial court denied the motion,
concluding there was no reasonable likelihood of misidentification that would be
resolved by a physical lineup.
       At both the preliminary hearing and trial, Jesus was unable to identify
defendant or codefendants Pasillas and Lopez.2 Likewise, Jonathan made no
identifications in court. However, at trial Jesus testified that the four men he had
identified at the showup were involved in the chase.
       Defendant was convicted of two counts of assault with a deadly weapon
and of carrying a concealed dirk or dagger.3 The jury also concluded that
defendant committed both assaults for the benefit of a criminal street gang.4


1      No defendant challenged the curbside showup as being so impermissibly
suggestive as to violate due process. (See Manson v. Brathwaite (1977) 432 U.S.
98, 104-107; Neil v. Biggers (1972) 409 U.S. 188, 196-199.)
2      Sanchez pled guilty before trial.
3      Penal Code section 245, subdivision (a)(1); id., section 12020, subdivision
(a)(4). All further undesignated statutory references are to the Penal Code.
4      Section 186.22, subdivision (b)(1).



                                           4
Defendant was placed on probation for three years and sentenced to one year in
the county jail.
          Defendant contended on appeal that the trial court erroneously denied his
motion for a pretrial lineup, and that the error was prejudicial under Chapman v.
California (1967) 386 U.S. 18 (Chapman.) The Court of Appeal concluded that
defendant forfeited his right to appeal the denial of his lineup motion by failing to
seek a pretrial writ. It observed: “When a trial court denies a request for a pretrial
lineup, and the defendant elects not to challenge the ruling by writ, the delay
effectively thwarts the purposes served by the right conferred under Evans and
prevents a court reviewing the claim on appeal from the conviction from
fashioning any appropriate relief even if it finds error.” The Court of Appeal thus
held: “Because of the uniquely ephemeral nature of the rights conferred by Evans,
we conclude the requirement of timely pursuit of a lineup includes timely review
of an adverse ruling by writ proceedings, and failure to pursue writ relief waives
the claim of error.”
          Addressing the issue on the merits, the Court of Appeal held that even
assuming defendant had preserved his claim and that the trial court had abused its
discretion in failing to order a lineup, the error was harmless beyond a reasonable
doubt because Jesus did not identify defendant at either the preliminary hearing or
trial.5
                                    II. DISCUSSION
          A. Defendant’s Right to a Lineup
          This court established the procedure for seeking a so-called Evans lineup in
1974. In Evans, supra, 11 Cal.3d 617, witnesses had identified the defendant at
the crime scene after seeing only the back of his head and shoulders through the

5       The Court of Appeal assumed error and we do likewise. Because we have
limited our review to issues of procedure, we express no further opinion whether
the trial court‟s ruling was actually erroneous.



                                            5
rear window of a police car where he was seated. The defendant asked the trial
court to order police to conduct a pretrial lineup. The trial court was inclined to do
so, but believed it lacked authority to make such an order. The defendant
ultimately applied to this court for a writ of mandate.
       When Evans was decided, there were no cases holding “as a matter of
discovery in criminal matters that a trial court may order the granting of a
defendant‟s request for a pretrial lineup.” (Evans, supra, 11 Cal.3d at p. 621.)
The Evans court held: “[D]ue process requires in an appropriate case that an
accused, upon timely request therefor, be afforded a pretrial lineup in which
witnesses to the alleged criminal conduct can participate.” (Id. at p. 625.) The
right to a lineup, however, is neither universal nor categorical. To secure a court-
ordered lineup a defendant must show that eyewitness identification is a material
issue and there is “a reasonable likelihood of a mistaken identification which a
lineup would tend to resolve.” (Ibid.)
       The Evans court explained: “The questions whether eyewitness
identification is a material issue and whether fundamental fairness requires a
lineup in a particular case are inquiries which necessarily rest for determination
within the broad discretion of the magistrate or trial judge. [Citations.] We do not
hold, accordingly, that in every case where there has not been a pretrial lineup the
accused may, on demand, compel the People to arrange for one. Rather, as in all
due process determinations, the resolution here to be made is one which must be
arrived at after consideration not only of the benefits to be derived by the accused
and the reasonableness of his request but also after considering the burden to be
imposed on the prosecution, the police, the court and the witnesses.” (Evans,
supra, 11 Cal.3d at p. 625.)
       B. Writ a Basis to Challenge Ruling Denying a Lineup Motion
       Here, the Court of Appeal held that a defendant is barred from challenging
the denial of a lineup motion on appeal if the defendant failed to first seek
interlocutory writ review of that ruling. We reject that judicially imposed


                                          6
requirement. Instead, we hold that a defendant may, but is not required to, seek
writ relief. A failure to do so has tactical consequences but forfeiture of appeal is
not one of them.
       “ „It is settled that the right of appeal is statutory and that a judgment or
order is not appealable unless expressly made so by statute.‟ ” (People v.
Mazurette (2001) 24 Cal.4th 789, 792; see People v. Totari (2002) 28 Cal.4th 876,
881.) Section 1237, subdivision (a) confers on the defendant the right to appeal
from “a final judgment of conviction.” However, section 1259 makes clear that
the full scope of appeal encompasses “any question of law involved in any ruling,
order, instruction, or thing whatsoever said or done at the trial or prior to or after
judgment, which thing was said or done after objection made in and considered by
the lower court, and which affected the substantial rights of the defendant.”
(§ 1259.) “[T]he Legislature has provided for appellate review of judgments and
postjudgment orders and any intermediate order or decision which involves the
merits or necessarily affects that judgment or postjudgment order, or which
substantially affects the rights of a party.” (In re Matthew C. (1993) 6 Cal.4th
386, 396, fn. omitted.) Under section 1259 “an appellate court may review any
question of law involved in any order made prior to judgment.” (People v. Chi Ko
Wong (1976) 18 Cal.3d 698, 710.) An order denying a lineup motion involves a
question of law made before the judgment and it affects a substantial right of the
defendant. Therefore, it falls within the scope of section 1259. If allowed to
stand, the Court of Appeal‟s requirement could impose a significant limitation on
that right.
       This court reviewed the denial of lineup motions on postjudgment appeal in
People v. Abel (2012) 53 Cal.4th 891, 911-913, and People v. Redd (2010) 48
Cal.4th 691, 723-725, in which the lineups were requested shortly before trial, and
People v. Farnam (2002) 28 Cal.4th 107, 183-184, and People v. Williams (1997)
16 Cal.4th 153, 235-236, in which lineups were sought during the penalty phase of
trial. In each case we concluded that the trial court did not abuse its discretion by


                                           7
denying the lineup motion. However, none of these cases raised the question of
whether a failure to seek writ relief bars review on appeal.
       A reviewing court may exercise its jurisdiction in either a direct appeal or
an extraordinary writ proceeding. (Leone v. Medical Board (2000) 22 Cal.4th 660,
668.) A writ of mandate, or mandamus, is an extraordinary writ known at
common law. The writ of mandate lies generally to compel performance of a legal
duty when no plain, speedy, and adequate remedy at law is available. (Code Civ.
Proc., §§ 1085-1086.) Review by mandate “is often sought before trial to avoid
the effect of a trial court‟s order or other ruling that will affect the conduct of the
proceedings and that could not otherwise be challenged until after judgment is
rendered.” (1 Bonneau et al., Appeals and Writs in Criminal Cases (Cont.Ed.Bar
3d ed. 2011) § 7.8, p. 354.) Unlike the appeal following judgment, which is heard
as a matter of statutory right, review by writ is at the discretion of the reviewing
court. “The discretionary aspect of writ review comes into play primarily when
the petitioner has another remedy by appeal and the issue is whether the
alternative remedy is adequate.” (Powers v. City of Richmond (1995) 10 Cal.4th
85, 113; see Code Civ. Proc., § 1086.)
       At the time Evans was decided, we had long held that “pretrial discovery
orders in criminal cases may, in certain instances, be reviewed by prohibition or
mandate.” (People v. Municipal Court (Ahnemann) (1974) 12 Cal.3d 658, 661.)
The Evans court characterized the defendant‟s request for a lineup as an attempt to
secure a form of pretrial discovery. (See Evans, supra, 11 Cal.3d at p. 622.) The
need for a “speedy” remedy regarding a lineup motion is reflected in the
description of the issue as “whether prior to the in-court receipt of evidence of
identification” the accused can be afforded a lineup. (Ibid.) In creating the
procedure, the Evans court observed that “an accused is entitled to the knowledge
to be gained from a lineup sufficiently in advance of trial to prepare therefor.” (Id.




                                            8
at p. 626.) The trial court has the discretion to deny a motion that is untimely.
(Ibid.)6
       A lineup‟s primary benefit arises before the witness encounters the
defendant in court. Seeing a suspect among a group of individuals tests the
accuracy of a witness‟s identification in a way different from an isolated encounter
in the courtroom. “The question is whether prior to the in-court receipt of
evidence of identification the accused can insist that procedures be afforded
whereby the weakness of the identification evidence, if it is in fact weak, can be
disclosed.” (Evans, supra, 11 Cal.3d at p. 622.) For this reason, the value of a
pretrial lineup may be diminished once a direct confrontation between defendant
and accuser has occurred. If a lineup is improperly denied, the defendant should
be able to correct that error before the direct confrontation in court.7
       The question here is not whether a defendant may seek writ review of the
denial of a lineup motion. That question was answered affirmatively in Evans,
supra, 11 Cal.3d 617. Because the Evans court granted relief and the lineup was
ordered, there was no need to discuss a postjudgment appeal. The question here is
whether a defendant who is denied a lineup motion in the trial court and then fails
to seek writ review of that ruling is barred from challenging it on postjudgment
appeal.
       The Court of Appeal imposed such a bar. It reasoned that if a lineup was
improperly denied, reversal on appeal would be an imperfect remedy. Once seen

6       We use the term “trial court,” recognizing that the motion will be heard by
the magistrate if it is made before the preliminary hearing or by the trial court if it
is heard at that stage.
7       In Evans, supra, 11 Cal.3d 617, the request for the lineup was made after
the preliminary hearing and before trial. Evans was charged with robbing a
restaurant owner, waitress, and customer. The restaurant owner was the only
witness who testified at the preliminary hearing. He identified the defendant. (Id.
at pp. 619-621.)




                                           9
by the witness in the courtroom, the defendant could never be restored to the status
quo ante. This consideration may indeed be one that might influence a reviewing
court when determining whether to issue a peremptory or alternative writ.
       However, in requiring an interlocutory petition for writ review, the Court of
Appeal would severely limit the availability of appeal. Under the Court of
Appeal‟s analysis, only a defendant whose petition for writ relief was summarily
denied could attack the error on appeal.8 A defendant who failed to seek writ
relief would be precluded from raising the issue on appeal. Likewise, under
existing law, a defendant who sought and was denied relief after issuance of an
alternative writ would be foreclosed from raising the issue. “When the appellate
court issues an alternative writ, the matter is fully briefed, there is an opportunity
for oral argument, and the cause is decided by a written opinion. The resultant
holding establishes law of the case upon a later appeal from the final judgment.”
(Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Thus, the Court of Appeal‟s rule
compels a defendant to seek a pretrial writ remedy and run the risk that posttrial
appeal will be precluded. Because the right to appeal is statutory, such a limitation
should be considered by the Legislature. (See Powers v. City of Richmond, supra,
10 Cal.4th at p. 110.)9
       The Legislature has expressly provided for appellate review by
extraordinary writ in particular situations.10 In doing so, the Legislature has


8      Although the Court of Appeal‟s approach would permit this subgroup of
defendants to raise the issue on appeal, anomalously the problem of fashioning an
appropriate remedy would remain.
9      “[A]lthough the Legislature may regulate the mode of appellate review, it
may do so only to the extent that it does not thereby „ “substantially impair the
constitutional powers of the courts, or practically defeat their exercise.” ‟
[Citations.]” (Powers v. City of Richmond, supra, 10 Cal.4th at p. 110.)
10     As one treatise has explained: “A „statutory writ‟ is not an independent
type of writ; the term simply refers to particular situations in which review by a
common law writ (mandate, prohibition or certiorari) is expressly authorized by
                                                            (footnote continued on next page)


                                          10
approached the interaction between writ relief and postjudgment appeal in at least
three ways.
        First, as to some statutes, the Legislature has made writ relief the exclusive
avenue to address trial court error. “[T]hroughout the years, the Legislature has
found, in a variety of settings, that the need for a speedy, final determination of
certain discrete issues arising in the course of trial litigation justifies the adoption
of statutory provisions permitting a trial court‟s resolution of such issues to be
challenged in an appellate court only through the prompt filing of a petition for
extraordinary writ (and not in a subsequent direct appeal of the final judgment
rendered in the case). The decisions of the California courts regularly have upheld
and applied such legislative measures.” (Powers v. City of Richmond, supra, 10
Cal.4th at p. 122, conc. opn. of George, J.) For example, under Code of Civil
Procedure section 170.3, subdivision (d), “The determination of the question of the
disqualification of a judge is not an appealable order and may be reviewed only by
a writ of mandate from the appropriate court of appeal . . . .” (Italics added.)
Under Code of Civil Procedure section 418.10, subdivision (c), a defendant in a
civil case may only challenge by extraordinary writ a trial court order refusing to
quash service, and may not raise the issue on appeal of the final judgment.
(McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257 [so construing Code
Civ. Proc., former § 416].)
        Second, as to certain other statutes, the Legislature made writ review
available, but also allowed for review on appeal. For example, under section


(footnote continued from previous page)

statute. [¶] . . . Statutory authorization for writ review in a particular situation
does not compel the court to grant the writ petition. As where writ relief is sought
strictly under the common law, appellate courts have discretion to summarily
deny the petition.” (2 Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2011) ¶¶ 15.85-15.86, p. 15-44.)



                                           11
1538.5, a defendant may move to suppress evidence at the preliminary
examination. (§ 1538.5, subd. (f)(2).) If the motion is denied, it may be renewed
in a special hearing in superior court. If the motion fails again, the defendant can
pursue writ relief. (§ 1538.5, subd. (i).) But a defendant who does not seek a writ
review may yet challenge the magistrate‟s ruling on appeal following a conviction
by plea or at trial. (§ 1538.5, subd. (m).) Similarly, under section 999a, a
defendant may seek a pretrial writ if a court declines to set aside the information
or indictment. (See § 995.) Even if a writ is not sought, a defendant may still seek
review on appeal following the judgment, although the defendant must establish
the error was prejudicial. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)
       Finally, only in the context of dependency proceedings under the Welfare
and Institutions Code has the Legislature adopted the procedure imposed by the
Court of Appeal here. As to orders terminating reunification services and setting a
selection and implementation hearing, the Legislature has provided that a party
must seek writ review of that order as a condition to raising the issue on appeal of
a final judgment terminating parental rights. (Welf. & Inst. Code, § 366.26, subd.
(l)(1).) In doing so, the Legislature acted in direct response to our decision in In re
Matthew C., supra, 6 Cal.4th 386. There, we considered a former provision of the
Welfare and Institutions Code providing that an order terminating reunification
services and setting a Welfare and Institutions Code section 366.26 hearing “is not
an appealable order, but may be the subject of review by extraordinary writ.”
(Welf. & Inst. Code, § 366.26, former subd. (k), as amended by Stats. 1989, ch.
913, § 17, pp. 3165, 3169.) We construed the provision to mean that the order
setting such a hearing was a nonappealable interim order. It could, however, be
reviewed immediately by extraordinary writ, and the findings subsumed within the
order could also be raised on appeal from the final order terminating parental
rights. (In re Matthew C., supra, at pp. 400, fn. 13, 401.)
       In reaching this conclusion in In re Matthew C., supra, 6 Cal.4th 386, we
noted that the phrase “not an appealable order” generally describes an


                                          12
interlocutory order that is not immediately appealable, but is ultimately reviewable
upon appeal from a final judgment. (Id. at p. 393.) We emphasized that
legislative intent to abolish a right to appeal must be clearly stated, and any doubt
should be resolved in favor of the right whenever “ „the substantial interests of a
party are affected.‟ ” (Id. at p. 394.) We observed that the Legislature had not
included any statutory language circumscribing the right to appeal after a final
order terminating parental rights. (Id. at p. 395.)
       Nevertheless, we acknowledged there is a “legitimate policy concern” when
orders concerning a child‟s permanent placement are delayed. (In re Matthew C.,
supra, 6 Cal.4th at p. 400.) In a footnote, we suggested the Legislature address the
problem of delayed appellate review: “As we construe the current statutory
scheme, seeking writ review of the order terminating reunification services and
setting a [Welf. & Inst. Code] section 366.26 hearing is permissible but not a
condition for raising these issues on appeal. If the Legislature deems it
appropriate, however, it could amend the statute to expressly provide that a party
must seek writ review as a condition to later raising the issue on appeal from a
final judgment, and to require that parties be explicitly advised of this requirement
at the final review hearing.” (Id. at p. 400, fn. 13.)
       The Legislature responded and replaced Welfare and Institutions Code
former subdivision (k) with subdivision (l) (Stats. 1994, ch. 1007, § 2, p. 5959),
which provides that an order setting a Welfare and Institutions Code section
366.26 hearing is not appealable at any time unless a petition for extraordinary
review was filed in a timely manner and the writ petition “was summarily denied
or otherwise not decided on the merits.” (Welf. & Inst. Code, § 366.26, subd.
(l)(1)(A), (C).)
       In similar fashion, the Legislature limited appellate review of orders
designating the placement of the dependent child after parental rights have been
terminated. Under Welfare and Institutions Code section 366.28, a timely writ



                                          13
petition is the exclusive way to perfect the right to appellate court review of such
orders. (Welf. & Inst. Code, § 366.28, subd. (b)(1)(A), (C).)
       All of which brings us to this case. The opportunity to request a lineup is
not a creature of statute, but a right conferred by this court in Evans, supra, 11
Cal.3d 617. When Evans was decided in 1974, “[t]his court ha[d] developed rules
of criminal discovery in the absence of legislation.” (Hill v. Superior Court
(1974) 10 Cal.3d 812, 816, fn. 3.) As a result, the Legislature has never expressly
addressed the availability of appellate review when a trial court denies a lineup
motion.
       When this court has been asked in other contexts to impose a writ
requirement as a condition to seeking appellate review, we have declined. In
People v. Memro (1985) 38 Cal.3d 658 (Memro), overruled on other grounds in
People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2, the trial court denied the
defendant‟s request for discovery of complaints that police officers had used
excessive force. The prosecution argued that the defendant had forfeited appellate
review by failing to seek a pretrial writ. In refusing to impose such a requirement,
we stated: “While respondent correctly notes that pretrial review is appropriate in
discovery matters [citations], he fails to cite any authority for the proposition that
such review is a prerequisite to review of discovery error on appeal.” (Memro,
supra, at p. 675.) Additionally, we observed that a pretrial writ requirement might
add unnecessary delay and expense, and would limit this court‟s exercise of
appellate jurisdiction by resolving issues through writ procedure instead of on
direct appeal. (Ibid.) We noted the reluctance of courts in other contexts to
impose barriers to appellate review when important rights are involved (id. at
p. 676, and cases cited therein) and concluded that since discovery rights are
equally important, “this court declines to impose a pretrial writ requirement as a
condition to review on appeal” (ibid).
       Later, in People v. Batts (2003) 30 Cal.4th 660, we adopted the reasoning
of Memro, supra, 38 Cal.3d 658, to conclude that a defendant who challenges the


                                          14
denial of a motion to dismiss on double jeopardy grounds is not required to seek
writ review in order to preserve the issue for appeal. (People v. Batts, at pp. 677-
678.)
        Memro cited various policy reasons to support its holding. We need not
revisit the merits of those policy reasons or resolve whether they apply with equal
force here. As this court did in Memro and People v. Batts, we decline to impose
such a mandatory requirement. Here, we hold that in the absence of statutory
limitation, a trial court‟s denial of a lineup motion is a prejudgment order that falls
within the scope of section 1259, entitling a defendant to raise the issue on appeal.
Whether application for a pretrial writ should be the exclusive remedy or should
be required to preserve the issue for appeal are questions for the Legislature.
        C. Appellate Review of Denial of a Lineup Motion
        Defendant points out that the decision to forgo writ review “imposes
[certain] costs.” He acknowledges that by waiting until after final judgment to
seek appellate review, a defendant must demonstrate not only error in the denial of
the lineup motion, but also prejudice occasioned by the error. We turn to the
analysis of prejudice on appeal, first determining the applicable standard and then
discussing its application generally.
            1. Standard of Prejudice
        Although the Evans court concluded that a defendant has a “due process”
right to a lineup in appropriate circumstances (Evans, supra, 11 Cal.3d at p. 625),
Evans did not specify whether the procedure it approved was grounded in federal
or state due process. Relying on federal due process, defendant urges that we must
apply the standard of Chapman, supra, 386 U.S. 18, 23-24, requiring
demonstration by the prosecution that the error was harmless beyond a reasonable
doubt. Conversely, the Attorney General argues the presumed error here resulted
in a denial of state due process. Thus, the applicable standard is found in Watson,
supra, 46 Cal.2d 818, requiring defendant to show it is reasonably probable he



                                          15
would have obtained a more favorable result absent the error. (Id. at p. 836.) The
Attorney General has the stronger position.
       The question in Evans was whether trial courts had the authority to compel
the police to conduct a lineup. Evans concluded that “[b]ecause the People are in
a position to compel a lineup and utilize what favorable evidence is derived
therefrom, fairness requires that the accused be given a reciprocal right to discover
and utilize contrary evidence.” (Evans, supra, 11 Cal.3d at p. 623.) The Evans
court analogized to Wardius v. Oregon (1973) 412 U.S. 470 (Wardius). There, the
United States Supreme Court held that an Oregon statute violated the Fourteenth
Amendment‟s due process clause in requiring a defendant to provide alibi
information before trial without imposing a reciprocal discovery obligation on the
state. (Id. at pp. 474-476.) The Supreme Court stated that “[a]lthough the Due
Process Clause has little to say regarding the amount of discovery which the
parties must be afforded, [citation], it does speak to the balance of forces between
the accused and his accuser.” (Id. at p. 474.) The high court further noted that
although due process did not require Oregon to adopt any pretrial discovery
provisions, if it did, “discovery must be a two-way street.” (Id. at 475.)
       Wardius, supra, 412 U.S. 470, requires only that certain discovery
obligations be reciprocal. (People v. Yeoman (2003) 31 Cal.4th 93, 154.) It does
not entitle a defendant to a lineup as a matter of federal constitutional right.
Indeed, the high court in Wardius rejected the notion that federal due process
requires a particular means of discovery. (Wardius, supra, 412 U.S. at p. 475.)
Rather, as we applied Wardius in Evans, the defendant has the right to request a
lineup and the court has the discretion to order it. Because the defendant was
empowered to seek a lineup, the reciprocity concern of Wardius is satisfied.
       In concluding that courts can order a lineup in response to a defendant‟s
motion, the Evans court also loosely referred to Brady v. Maryland (1963) 373
U.S. 83 (Brady). Citing Brady, the Evans court stated: “Here petitioner seeks to
compel the People to exercise a duty to discover material evidence which does not


                                          16
now, in effect, exist. Should petitioner be denied his right of discovery the net
effect would be the same as if existing evidence were intentionally suppressed. It
is settled that the intentional suppression of material evidence denies a defendant a
fair trial.” (Evans, supra, 11 Cal.3d at p. 625, italics added, citing Brady, at p. 87.)
The analytical leap by the Evans court from suppression of actual evidence to the
failure to acquire nonexistent but potentially extant information was expansive and
unsupported.
       Under Brady, the prosecution violates due process when it withholds
evidence that is favorable to the accused and is material either to guilt or to
punishment. (Brady, supra, 373 U.S. at p. 87.) Evidence is “favorable” to the
accused “if it helps the defense or hurts the prosecution.” (People v. Zambrano
(2007) 41 Cal.4th 1082, 1132.) Evidence is “material” “if there is a reasonable
probability its disclosure would have altered the trial result.” (Ibid.)
       In citing Brady, supra, 373 U.S. 83, the Evans court did not mention that
the suppressed evidence must be “favorable,” and did not employ the term
“material” as that word is defined in Brady. The Evans analysis failed to explain
how nonexistent evidence could be either favorable or material. Nevertheless, the
Evans court appears to have relied on Brady only as further support for its
conclusion that a defendant must be afforded an opportunity to seek a court-
ordered lineup. As subsequent federal cases make clear, the Evans court‟s
characterization of Brady and its scope has proven overbroad.
       Brady, supra, 373 U.S. 83, does not stand for the proposition that a
defendant has a federal constitutional right to a lineup or generally to compel
certain kinds of investigation. In Weatherford v. Bursey (1977) 429 U.S. 545, the
United States Supreme Court stated: “There is no general constitutional right to
discovery in a criminal case, and Brady did not create one . . . .” (Weatherford v.
Bursey, at p. 559.) Brady merely serves “ „to restrict the prosecution‟s ability to
suppress evidence rather than to provide the accused a right to criminal
discovery.‟ ” (People v. Morrison (2004) 34 Cal.4th 698, 715, italics added.)


                                          17
When a motion for a lineup is made, neither the prosecution nor the police have
suppressed or destroyed favorable evidence or wrongfully denied a discovery
request. Indeed, at the time the lineup motion is made, there is no evidence
available to disclose.
       The United States Supreme Court has never held that a defendant has a
constitutional right to compel a pretrial lineup. The Ninth Circuit Court of
Appeals has expressly rejected any constitutional dimension to a defendant‟s
request for a lineup. (See United States v. Robertson (9th Cir. 1979) 606 F.2d 853,
857 [“An accused has no absolute or constitutional right to a lineup”].) All but
one of the remaining regional federal circuits have held there is no federal
constitutional right to a lineup. (See, e.g., United States v. Hurt (D.C. Cir. 1973)
476 F.2d 1164, 1168; United States v. Estremera (2d Cir. 1976) 531 F.2d 1103,
1111; United States v. Hall (3d Cir. 1971) 437 F.2d 248, 249; United States v.
White (4th Cir. 1973) 482 F.2d 485, 488; Branch v. Estelle (5th Cir. 1980) 631
F.2d 1229, 1234; United States v. Causey (6th Cir. 1987) 834 F.2d 1277, 1286;
United States v. Jackson (7th Cir. 1987) 835 F.2d 1195, 1198; United States v.
Ostertag (8th Cir. 1980) 619 F.2d 767, 711; Haskins v. United States (10th Cir.
1970) 433 F.2d 836, 838; Code v. Montgomery (11th Cir. 1984) 725 F.2d 1316,
1320, fn. 4.)11
       We are mindful that for almost four decades our decision in Evans has been
the controlling authority guiding a trial court‟s exercise of discretion in ruling on
defense motions for pretrial lineups. Because this court has never determined that


11      As to the First Circuit, in Appeal of McGuire (1st Cir. 1978) 571 F.2d 675,
the federal appeals court considered a defendant‟s refusal to participate in a lineup,
rather than a defendant‟s request for a lineup. The court stated: “ „The line-up is
intended for the protection of the individuals‟ constitutional rights in order to
avoid improper suggestiveness in any confrontation. If they elect to dispense with
that protection, the decision is theirs alone, and they cannot properly be heard to
complain.‟ ” (Id. at p. 677.)



                                          18
a denial of such a motion was an abuse of discretion, we have never been required
to identify the basis of the due process right discussed in Evans. In light of the
foregoing analysis and federal court pronouncements, we clarify that the source of
the important due process right identified in Evans, supra, 11 Cal.3d 617, is the
California Constitution. Therefore, error is analyzed under the test articulated in
Watson, supra, 46 Cal.2d at page 836.
               2. Demonstration of Prejudice
       Defendant focuses on the availability of an appropriate remedy for the
presumed error rather than the threshold question of whether prejudice resulted.
The Court of Appeal, in concluding that a defendant must first pursue writ relief
when a request for a lineup is denied, opined there is no adequate remedy on
appeal: “If a defendant forgoes writ review of the lineup ruling, and instead
undergoes a preliminary hearing and trial, the witness will have ordinarily viewed
the defendant at the preliminary hearing and/or at trial. Even if an appellate court
reversed and ordered a lineup on remand, the results of that lineup would have no
evidentiary value: a positive identification would be tainted by the fact the
witness saw the defendant at trial, and a negative identification would be tainted
by the lengthy passage of time during which fading memories and changing
appearances would operate.” Defendant asserts that, on the contrary, an
appropriate remedy would be remand for a new trial with a jury instruction
allowing the jury to infer that if a lineup had been held the witness would have
been unable to identify the defendant. The question of remedy, however, is
premature.12




12     Defendant‟s argument and the Court of Appeal‟s concern as to the
adequacy of remedy should prejudicial error be demonstrated are policy
considerations more properly addressed by the Legislature if it chooses to impose
a prerequisite or alternative to appellate review. (Ante, at p. 15.)



                                         19
       Defendant puts the cart before the horse. Before he can demand a remedy,
he must first establish that he was prejudiced by the trial court‟s error. As noted,
under Watson, a defendant must show it is reasonably probable a more favorable
result would have been obtained absent the error. (Watson, supra, 46 Cal.2d at p.
836.) Prejudice under Watson “must necessarily be based upon reasonable
probabilities rather than upon mere possibilities.” (Id. at p. 837.) The dilemma for
a defendant in this circumstance is that the trial court erred in denying the
opportunity for a lineup. The outcome of that lineup is unknown because it was
never conducted. “[I]t has long been recognized that „[i]n the case of in-court
identifications not preceded by a lineup . . . , the weaknesses, if any, are directly
apparent at the trial itself and can be argued to the court and jury . . . .‟
[Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) This court‟s
decision in Evans, supra, 11 Cal.3d 617, “did not overrule the principle that an
identification made in front of the jury carries with it the circumstances under
which it was made, which, in turn, can be argued to and weighed by the jurors.”
(People v. Breckenridge (1975) 52 Cal.App.3d 913, 936.)
       There may be some circumstances in which a defendant would be able to
establish prejudice. However, many attempts to do so will founder on the shoals
of speculation. The mere assertion that the witness might possibly have failed to
make a positive identification cannot demonstrate prejudice under Watson. A
contrary conclusion confers a windfall on a defendant who forgoes writ relief and
proceeds to trial. In that circumstance, the defendant could argue prejudice on
appeal simply by asserting that the witness might have failed to make the
identification. However, if the defendant had been successful on the writ and
obtained a lineup, the defendant may have been identified.
       Establishing prejudice is even more problematic when, as here, the witness
fails to identify the defendant at trial or is uncertain. Again, any suggestion as to
the outcome of an erroneously denied lineup would rest on speculation. It is
possible the witness would have identified the defendant at the lineup. But even if


                                            20
the witness failed to do so or was uncertain, the defendant would have gained little
or nothing of evidentiary value in light of the witness‟s failure to make an
identification before the jury.
       The tactical decision whether to seek immediate writ review or wait until
after judgment to bring a direct appeal is an individualized one that involves
consideration of potential risks and rewards. It is true, as defendant asserts, that
seeking writ review requires additional effort and may cause delay. In fact, a
decision to assert a misidentification defense gives rise to a number of tactical
choices. For example, requesting an Evans lineup in the trial court has the
potential for both positive and negative results. A defendant who is confident that
a witness cannot make a lineup identification may wish to press the issue and then
be able to point to the witness‟s failure. A defendant who is less confident of that
outcome may not want to risk an identification. In the latter case, the defense may
conclude that the wiser course is not to seek a lineup and argue at trial that no
lineup was provided, thus attacking the witness‟s in-court identification as unfairly
tested by law enforcement.
       If the lineup motion is made and denied, tactical factors remain in deciding
whether to seek a writ. As illustrated here, one of those factors is the requirement
of establishing prejudice on appeal. A showing of prejudice is, obviously, not
required in a writ proceeding. Indeed, the purpose of seeking review is to
foreclose any irremediable detriment that might ensue if the writ relief is not
granted. However, seeking and securing writ relief may be a Pyrrhic victory if a
witness does identify the defendant in the lineup sought. On the other hand, not
seeking writ relief allows the defense to raise the denial of the lineup as an
appellate issue after judgment. But to succeed, that appellate claim will require
the defendant to establish error and show prejudice.




                                          21
       D. Any Error in Denying Defendant’s Motion for a Lineup Was
          Harmless

       We turn now to the merits of defendant‟s claim. The Court of Appeal
assumed the trial court abused its discretion in denying the lineup motion. It
applied the more rigorous Chapman standard (Chapman, supra, 386 U.S. 18) and
concluded that any error was harmless beyond a reasonable doubt, stating: “Mena
asserts the erroneous ruling deprived him of evidence that Jesus would not have
identified him in a lineup conducted in June of 2007 (near the time of Mena‟s
Evans motion), and we should reverse and instruct the jury on remand to that
effect. However, Jesus testified at trial that he did not recognize Mena as one of
his attackers, and he had not been able to identify Mena as one of his attackers in
June of 2007 when he saw Mena at the preliminary hearing.” Thus, the jury
convicted defendant even though it heard testimony substantially identical to the
evidence of which defendant claimed he was deprived when not afforded a lineup.
       We also assume, without deciding, that the trial court erred in denying
defendant‟s lineup motion. Applying the Watson standard (Watson, supra, 46
Cal.2d 818), we conclude that any such error would have been harmless under the
particular circumstances of this case. Indeed, our conclusion would be the same
even under Chapman.
       Defendant argues it is wrong to consider Jesus‟s failure to identify him in
court as a weakness in the prosecution‟s case or to conclude that the lineup would
have added nothing of evidentiary value. He urges that the prosecutor turned
Jesus‟s failure to identify into affirmative evidence of guilt by insinuating that
Jesus was too frightened to make an identification. Defendant contends the lineup
evidence would have defeated this argument. Defendant‟s assertion fails.
       At trial, the prosecutor questioned Jesus about his identifications at the
curbside showup. Jesus said he had not wanted to look at the detained men
“[b]ecause that would have made me — because I didn‟t want to.” The prosecutor
then asked Jesus about the consequences of being a “snitch.” Jesus testified that a


                                          22
“snitch” could be killed or hurt, and that his neighborhood friend had been shot
two years earlier. Jesus confirmed his own worry that he would be killed or hurt.
On cross-examination, Jesus stated that when he arrived at the showup, he was
concerned about being recognized.
       The prosecutor asked Jesus: “When you made those identifications back in
April were you telling the truth to the best of your ability?” Jesus answered,
“Yes.” Jesus confirmed the men he pointed out at the curbside showup were the
men who had been involved in the chase. On cross-examination, he did
acknowledge testifying at the preliminary hearing that he was “90 percent” certain
of his identification at the curbside showup.
       When asked at trial whether he recognized anyone who was involved in the
attack, Jesus said, “No.” The prosecutor asked, “Are you saying these guys were
not involved?” Jesus replied, “I‟m not sure.” Jesus also testified that he could not
identify anyone at the preliminary hearing, and had also been unsure at that
proceeding. Jesus told the prosecutor that he did not want to testify at trial, and
was doing so only because he was subpoenaed. The following colloquy ensued:
       “Q. Did you want to be here back in June [at the preliminary hearing]?
       “A. No.
       “Q. How come?
       “A. Because I just didn‟t want to. I want to leave everything as it is.
       “Q. You want to leave everything as it is?
       “A. Yes.
       “Q. Are you worried about something happening to you?
       “A. Yes.”
       In closing argument, the prosecutor told the jury that, in evaluating a
witness‟s credibility, it must consider possible reasons why a witness said or did
not say something. The prosecutor continued: “It is a lot different sitting in that
chair up there just a few feet away from some people that did some very violent
things and being asked to look at those people and identify them as guilty parties


                                          23
as people who participated [than] it is to sit in the back of a patrol car with armed
officers in the front seat where those people can‟t see you.” The prosecutor
argued, “I would submit to you [Jesus] was scared stiff when he was in here when
I asked him to look around the courtroom. . . . He could barely look over to the
left side of the courtroom. His eyes flashed over there for a second and he said,
„No, I do not recognize anybody.‟ He is scared stiff. He doesn‟t live in this
courtroom. . . . He‟s got to go back and walk on those streets. That is something
that you can consider in deciding whether or not he was giving truthful, accurate
testimony or not. [¶] It doesn‟t change the fact that he didn‟t ID them. What I‟m
saying is a failure to identify in court doesn‟t mean that these defendant[s] are not
guilty.”
       Defendant asserts that the prosecution‟s argument would have been
undermined had the court ordered a lineup. According to defendant, the
prosecutor acknowledged that Jesus “was not fearful” when he viewed the
suspects from the rear of the patrol car because he was protected and could not be
seen. Defendant maintains that during a police-supervised lineup, Jesus would
have viewed defendant and others from behind one-way glass. If Jesus had failed
to identify him in a lineup shortly after the crimes, the prosecutor could not have
credibly argued that Jesus did not make an in-court identification because he was
afraid. Defendant urges, “the results of the lineup would have provided crucial
evidence that Jesus C. had misidentified Mena at the curbside showup, and that his
failure to identify Mena at the preliminary hearing and trial was not the result of
intimidation.” These arguments miss the mark.
       First, the prosecutor did not argue that Jesus “was not fearful” during the
curbside showup. Indeed, there was clear evidence to the contrary. The
prosecutor merely distinguished the circumstances of the showup from the more
intimidating setting of an in-court identification.
       More importantly, however, defendant‟s argument assumes that Jesus
would not have identified him at a lineup. Defendant attempts to establish


                                          24
prejudice by arguing the failure to order a lineup effectively excluded “evidence
that Jesus C. would not have been able to identify Mena in a formal lineup.”
Defendant‟s argument illustrates the dilemma for reviewing courts on appeal from
a judgment. It rests on sheer speculation. It simply cannot be determined what
Jesus might have said or done at a lineup. He might have identified defendant, or
affirmatively said defendant was not his assailant, or, as he did at both the
preliminary hearing and trial, said he could not identify anyone because he was
uncertain.
        The best outcome from defendant‟s perspective would have been a firm
statement from Jesus that his attacker was not in the lineup. In light of his
repeated in-court testimony, which was substantially less definitive, such a result
appears unlikely. Yet, even if Jesus had expressly said his assailant was not in the
lineup, the prosecutor could still have argued Jesus acted out of fear. The incident
occurred on April 13, 2007. The lineup motion was argued on May 29, 2007, a
little more than a week before the June 6 preliminary hearing. At that hearing,
Jesus was a reluctant witness. Had a lineup been conducted where Jesus made no
identification, the prosecutor could have reasonably argued at trial that Jesus was
acting with the same reluctance he displayed at the preliminary hearing. Neither
the presence of police nor the protection of one-way glass could have ensured the
secrecy of any identification Jesus made. The result of his lineup statement would
have been revealed during discovery and his appearance and testimony would
make his identity known to those inclined to retaliate. Defendant fails to establish
on this particular record that, but for the trial court‟s failure to order the lineup, he
would have obtained a more favorable result. (Watson, supra, 46 Cal.2d at p.
836.)
        Defendant also argues the harmless error standard cannot be satisfied
because the balance of the evidence against him was not strong. This argument
also fails. It is true that some harmless error conclusions are reached by relying on
the overall strength of the evidence of guilt. Such an approach is not the thrust of


                                           25
our analysis here. We are concluding that any assumed error was harmless
because, even if defendant had been given a lineup, no foreseeable outcome from
that procedure would have further assisted him.

                                  III. DISPOSITION

       The Court of Appeal erred in holding that defendant forfeited his right to
appeal the denial of his lineup motion by failing to pursue writ relief. However, it
correctly concluded that the trial court‟s error, if any, was harmless. For this
reason, we affirm the judgment.

                                                         CORRIGAN, J.


WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.




                                         26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Mena
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 173 Cal.App.4th 1446
Rehearing Granted

__________________________________________________________________________________

Opinion No. S173973
Date Filed: May 31, 2012
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Bernard E. Revak*

__________________________________________________________________________________

Counsel:

John P. Dwyer, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Susan Miller, Steven T.
Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.




*Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):

John P. Dwyer
Law Offices of John P. Dwyer
601 Van Ness Avenue, Suite E-115
San Francisco, CA 94102
(415) 885-4451

Eric A. Swenson
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2216
