People v. Lopez

• Decision Date: 17 March 2022
• Docket Number: A154417
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DANIEL LOPEZ, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. DANIEL LOPEZ, Defendant and Appellant.

A154417

California Court of Appeals, First District, First Division

March 17, 2022

NOT TO BE PUBLISHED

Solano County Super. Ct. No. VCR228164

BANKE J.

Daniel Lopez was convicted of two counts of attempted murder arising out of a bar room shooting. His defense was identity: his counsel maintained the eyewitness identification was unreliable, and his wife testified he was with her.

Defendant raises numerous issues on appeal, primarily regarding eyewitness identification issues, claimed prosecutorial misconduct, erroneous jury instructions, and insufficient evidence to support his conviction. He also contends, and the People concede, that the one-year enhancements imposed for prior prison terms under Penal Code section 667.5^[1] must be stricken. We agree the enhancements should be stricken and the case remanded for resentencing. In all other respects, we affirm.

BACKGROUND

The shooting occurred in a bar about a half hour before closing. Two bartenders, Heidi and Nicole, were working that night. Heidi noticed a man "pacing back and forth" in front of the bar. He aggressively said to Nicole "give me a shot." After Nicole responded that they had already announced last call, the man banged his fist on the bar and said "give me a fucking shot." He then pulled out a gun and pointed it first at Nicole and then at the bar's bouncer, who had approached him. The man told the bouncer to "back the fuck up," and then said "let me get that drink now," and waved the gun.

The man then moved towards a group of patrons, waving the gun and "pointing it at everybody." Jeffrey, one of the patrons, saw the man point the gun at a woman in the group. The man then "stuck his hand around" Jeffrey's throat and pointed the gun at his face. Jeffrey punched the shooter three times in the face and "caught eyes" with him. The man "immediately started shooting off the gun." One of the shots hit Jeffrey near the top of his jaw.

At that point, another patron, Doug, attempted to grab the man's gun. After shooting Doug in the wrist, the man pointed the gun towards a nearby group of people, then "turned and took off" out the back door of the bar.

When the police arrived, Nicole described the shooter as "[a] Mexican wearing a black hoodie." An officer then drove her to where police had detained an individual and asked if she could identify him as the shooter. Nicole was "100 percent" sure it was not him, because "[i]t was not the right clothing. He was taller [and] [h]e didn't have a giant tattoo on his neck." She described the shooter as "short, Hispanic. No more than 5' 5." Heavy set." "He had a little bit of facial hair and then the biggest part was the huge tattoo under his left ear to his throat." His eyes were brown, but had huge dilated pupils. At trial, Nicole testified she looked at the shooter "straight on" and had eye contact with him "[t]he whole time."

Later that day, police showed an array of six photographs of men including defendant in photograph one, to several people who had been at the bar. Heidi, the bartender, indicated numbers one and three looked familiar, but she could not be "a hundred percent sure." Jeffrey, the first patron who was shot, identified photographs one or three as possibly being the shooter. Another patron seated next to the shooter identified photographs one and four. Doug, who was shot in the wrist, was 75 to 80 percent sure the man depicted in photograph one was the shooter.

Following an anonymous tip identifying defendant and a car associated with him, defendant was arrested while a passenger in that car. In the vehicle, police found a bullet, gun holster knife, cell phone, and mail belonging to defendant. The gun holster and knife were in the passenger door pocket, while the mail was in the glove box. There were also two bullet holes in the car, one on the exterior of the driver's side door, and one in plastic footrest on the driver's side of the car.

The district attorney charged defendant with two counts of attempted murder (§§ 664, 187, subd. (a)), six counts of assault with a firearm (§ 245, subd. (a)(2)) and possession of a firearm by a felon. (§ 29800, subd. (a)(1).) The information also alleged infliction of great bodily injury and personal use of a firearm enhancements as to both counts of attempted murder. The information further alleged defendant had a prior strike conviction (§§ 667, subds. (b)-(j), 1170.12) and that he had prior convictions within the meaning of section 667, subdivision (a) and 667.5, subdivision (b).

At trial, Nicole, Jeffrey, and Doug all positively identified defendant as the shooter. The bouncer, Kalin, who had not been shown the photo spread, also positively identified defendant. Heidi identified defendant, as well, although she could not be a "hundred percent" certain. Two other witnesses, the patron seated next to the shooter and a barback working that night, were unable to identify the shooter.

Defendant's wife testified defendant was with her at the time of the shooting. She testified they checked into a Motel 6 in Vallejo around noon on November 26th with her baby and checked out on the following morning around 9:00 or 10:00 a.m., having never left the motel room. They got a room, rather than staying at her home, so they could have "intimate time together" and so defendant could bond with the baby. The room was in defendant's name, but she paid for it. They left in separate cars.

Surveillance videos from the bar depicting the shooting were played and admitted at trial.

The jury found defendant not guilty of one count of assault with a firearm, and two counts of assault with a firearm were dismissed. It found him guilty of all remaining counts and found true the enhancing allegations.

The court sentenced defendant to a total prison term of 111 years to life.

DISCUSSION

The Six-Photo Lineup

Defendant claims the six-photo lineup was "highly suggestive," "rendered the trial fundamentally unfair," and violated his due process rights, and the trial court therefore erred in denying his in limine motion to exclude the pretrial identifications. (Capitalization omitted.)

"A defendant's claim that an identification procedure was unduly suggestive is a 'mixed question of law and fact.' [Citations.] This standard of review applies because 'the facts are established, the law is undisputed, and the issue' we must resolve 'is whether the law as applied to the established facts is violated.' [Citation.] We review the so-called 'historical facts,' those factual determinations that underpinned the trial court's conclusion that the identification procedure was or was not suggestive, 'under a deferential standard.' [Citation.] This standard acknowledges that the trial court may have made 'credibility determinations,' that 'contribute[d] to deciding the facts of what had already happened, [but] were not dispositive of the inquiry because the trial court did not have a "first-person vantage"' to whatever 'facts occurred outside of court.'" (People v. Wilson (2021) 11 Cal.5th 259, 283 (Wilson).)

A due process violation occurs"' "only if the identification procedure is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"' [Citation.] If we determine the procedure was suggestive, no due process violation arises if '" 'the identification itself was nevertheless reliable under the totality of the circumstances.'"' [Citations.] In assessing the totality of the circumstances, we consider' "such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." [Citations.] "Against these factors is to be weighed the corrupting effect of the suggestive identification itself." '" (Wilson, supra, 11 Cal.5th at p. 283.)

"' "A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police." '" (People v Carter (2005) 36 Cal.4th 1114, 1164, italics omitted, superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)

Thus, photo arrays in which a defendant's photo "stands out" in some way are impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217 (Johnson), superseded by statute on other grounds as recognized in Verdin v. Superior Court, supra, 43 Cal.4th at p. 1106.) The danger of errors in witness identification based on photo arrays is increased "if [police] show . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized." (Simmons v. United States (1968) 390 U.S. 377, 383.)

"Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." (People v. Yeoman (2003) 31 Cal.4th 93, 125 (Yeoman).)" '[I]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.'" (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)

Defendant maintains the six-photo lineup caused his photo to "stand out" for three reasons: he was the only one wearing a hoodie, "the only person with extensive facial hair . . . including a moustache," and his photo was "in the number one position."

The photo array depicted six men who all appeared to be Hispanic, of about the same age, and with short dark hair and a moustache.

D...