1

Filed 7/29/16 P. v. Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMOUR SMITH,

Defendant and Appellant.

 A143703

 (Alameda County

 Super. Ct. No. C173693)

Lamour Smith was convicted of three counts of second degree robbery, each with 

a firearm use allegation, and one count of assault with a semiautomatic firearm. He 

contends the court abused its discretion when it denied his motion to compel a pretrial 

lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). Alternatively, 

he argues his attorney’s failure to request a lineup in a timely fashion violated his 

constitutional right to effective representation. Smith also maintains the denial of his 

request for one of the witnesses to describe his assailant before he was permitted to 

identify him in court was an abuse of discretion and a denial of due process of law. 

Smith’s assertions are meritless. We affirm the judgment.

BACKGROUND

Moses Jacko

On the night of October 22, 2013, Moses Jacko drove to 2235 East 23rd Street in 

Oakland to deliver a pizza. A prior customer had paid him with a $50 bill, which was 

unusual, and he was carrying about $250 in cash from previous deliveries. 
2

Jacko could not find the address he had been given, so he called the phone number 

on the order— (510) 467-6933. A woman, “Lola,” answered, told him the address he 

had was incorrect and said “No, you have to come further.” She said, “ ‘We are a block 

away from where you are at. I see your car. Should I keep coming?’ ” 

Jacko drove further. As he turned a corner he saw an African American woman in 

her mid-20’s wearing black and white leggings and a pink knit beanie hat. He stopped 

and got out of his car and handed the woman her pizza. Then, as he reached to get her 

soda, a man approached and pulled a gun that Jacko later tentatively identified as a 

semiautomatic. The robber was a “black male, somewhere around mid-20’s. I’m fiveeight, so he had to be at least five-ten. He was taller than me; slender build; he had a red 

hat on” and his hair was “to about the jaw area.” The area was not well lit, but it was not 

extremely dark. Jacko got a “pretty good” look at Smith. At trial, Jacko identified Smith 

as the robber and was “[o]ne hundred percent” sure of his identification. 

Smith took Jacko’s cash, wallet and delivery receipts. The woman took his black 

Nokia phone. After the robbery the couple walked down Inyo Avenue toward a dead 

end. 

Jacko flagged down police officer Nicholas Petersen and reported the robbery. He 

described the male robber as approximately five feet nine inches tall with a thin build and 

full lips, wearing a red baseball hat. Officer Petersen radioed the information to other 

officers. 

Officer Ira Anderson was in his patrol car on 23rd Avenue between East 22nd and 

East 23rd Street when a couple walking by caught his attention. The woman was wearing 

black and white pants and a bright pink knit cap. Her companion had on a hooded gray 

sweatshirt and a red hat. He was holding a black cell phone to his ear but not talking. A 

few moments later Andersen heard Officer Petersen’s broadcast about the robbery. He 

responded and asked Petersen if the woman was wearing a pink hat. When Petersen 

confirmed that she was, Anderson stopped and detained the couple. Smith had a black 

cell phone in his hand and one of the pair had a white plastic bag containing a two-liter 

bottle of soda. 
3

Officer Petersen drove Jacko to Anderson’s location for a field show-up. The 

officer told Jacko that police had detained two people who might or might not be the 

robbers. Jacko recognized Smith as the male robber by Smith’s red hat, facial hair, 

distinctive walk and saggy pants. The female detainee was the woman who robbed him. 

Officer Petersen blocked his own phone number by pressing star 67 and dialed the 

phone number that “Lola” had used to place her order. The black cell phone Smith was 

carrying when he was stopped vibrated and displayed a call from a blocked number. 

No weapons or pizzas were found. Smith had $240 in his pocket, comprised of 

one $50 bill, six $20 bills, twelve $5 bills and ten singles. The denominations “[p]retty 

much” matched the denominations taken from Jacko. 

Felipe Soares de Oliveria

On October 15, 2013, Felipe Soares de Oliveria attempted to deliver a pizza to a 

woman named Lola at 2235 East 23rd Street in Oakland. When he was unable to find the 

house he called the phone number on the order, (510) 467-6933. A woman answered, 

said she could see Mr. de Oliveria’s lights, and waved at him from down the street. De 

Oliveria drove toward her to the intersection of 23rd Street and Inyo Avenue. When he 

stopped his car he saw Lola with a man later identified as Smith. 

De Oliveria got out of his car and gave Lola the pizza. She waited a moment, then 

walked away without paying. De Oliveria turned to Smith, thinking Smith would pay 

him. Instead, Smith pulled an automatic or semiautomatic gun from his waistband, put it 

against de Oliveria’s head and said “Don’t move. Give me everything that you have.” 

Smith took de Oliveria’s wallet, his iPhone, and $40 or $45 from his pockets. Then he 

struck de Oliveria in the head with the handle of his gun and said “ ‘you lost.’ ” Smith 

and the woman walked away toward a dead end on Inyo Avenue. Smith was laughing 

and holding the waistband of his pants with both hands. 

At trial, de Oliveria identified Smith as the man who robbed him. The area where 

the robbery occurred was poorly lit, but de Oliveria saw everything that happened clearly. 

Smith’s hair was shorter on the night of the robbery but de Oliveria recognized his face 
4

and coloring. De Oliveria’s driver’s license says he is 5’6” tall, and he testified that the 

robber was taller than him.1 De Oliveria told the police the robber was 5’11”. 

De Oliveria recognized “Lola” at a court proceeding several months before trial. 

No one told him she would be present in court, and he was not asked to identify her at 

that time. 

Jin Hua Chen

Jin Hua Chen worked for his father’s Chinese restaurant. On October 21, 2013,

Chen took a phone order for food to be delivered to East 23rd Street and Inyo Avenue. 

The phone number for the order was (510) 467-6933. Chen did not see anyone when he 

got there, so he called the phone number and the woman who placed the order answered. 

Chen said he was outside and asked her to come out. A woman emerged a few minutes 

later and Chen gave her the food. As she pulled out her purse as if to pay, a man wearing 

a hooded sweatshirt approached from behind her and pointed a short, black gun at Chen 

from about a foot and a half away. Chen thought the gun was a semiautomatic. The man 

said, “If you don’t give me all your money, I’m going to shoot you in the head.” At trial, 

Chen identified Smith as the robber. 

Chen pulled about $200 from his wallet and gave it to Smith. Smith asked for 

Chen’s phone, but Chen said he did not have one. Chen walked away. Smith followed 

him to his car, and then he and the woman walked toward the dead-end on Inyo. 

Chen testified that he is 5’8” tall and the man who robbed him was about six feet 

tall. Chen recognized the woman robber in the courtroom when he testified at the 

preliminary hearing. 

Smith’s Police Interview

Smith was arrested the evening of the Jacko robbery. He waived his Miranda2

rights and was interviewed by Sergeant Todd Mork and Officer Michael Troupe the 

 

1 There is no indication in the record that Smith was asked to stand up when any of 

the witnesses identified him in court.

2 Miranda v. Arizona (1966) 384 U.S. 436.
5

morning after his arrest. A video recording of the interview was played for the jury. 

Smith initially claimed that the previous night he and his girlfriend Yohana—the woman 

he was arrested with—were at his friend Kevin’s house all day until 8:00 p.m., when he, 

Yohana and Kevin got a ride to a Popeye’s restaurant. After they ate, around 10:00 p.m., 

Smith and Yohana got dropped off at a store where they bought soda. They were 

walking from the store when the police stopped them. The phone Smith was carrying 

belonged to his friend Antoine, who let him borrow it. 

Sergeant Mork explained that he knew Smith was the robber and that he only 

wanted to know why Smith had done it. He asked, “Did you need money for rent? Did 

you need money for—you know.” Smith responded, “Yeah. I’m just sayin’ it is hard out 

there—I mean it’s hard.” A little later Mork asked, “I mean, do you need the money for 

food and rent and stuff? Is that what it is?” Smith answered, “You could say that.” 

Mork said “I’d like to hear it from you,” and this time Smith said “Yeah.” Sergeant 

Mork asked Smith whether the money was the only thing he took from Jacko. Smith 

said, “That’s the only thing that he had on him.” 

Sergeant Mork asked Smith whether this was the first time he and Yohana robbed 

someone. Smith answered “It’s—it’s not the first time we did that but shit—I don’t 

know. Shit we just to survive [sic].” Sergeant Mork asked whether Smith and Yohana

had taken food from a Chinese restaurant delivery man. After some evasive answers, 

Smith nodded affirmatively.3 When Mork asked if he had the delivery man’s wallet, 

Smith said “I don’t know.” When Sergeant Mork asked Smith “So how did this one go 

down?” Smith first responded “I never said it did so I don’t know,” but when Mork 

repeated the question he said “Doing the same (unintelligible) shit. We just shit . . . .” A 

little later, Mork again asked Smith if he took the Chinese food and the delivery man’s 

wallet Smith said “No. I did the black person.” 

 

3 After the jury viewed the taped interview, Officer Troupe testified that Smith 

nodded affirmatively when Sergeant Mork asked about taking food from the Chinese 

restaurant and again when Mork asked if he remembered the Domino’s pizza delivery 

man. 
6

Sergeant Mork also asked Smith about the de Oliveria robbery on October 15 and 

whether he took de Oliveria’s pizzas, iPhone, money and wallet. Smith said he didn’t 

remember. Then Mork asked if he had robbed a Domino’s Pizza delivery woman on 

October 2.4 This time, Smith nodded his head affirmatively and said “Yeah.” Asked 

what he did with her stuff, Smith said that “She didn’t have nothing.” Smith repeatedly 

denied that he owned or used a gun. 

Smith’s Testimony

Smith denied robbing de Oliveria, Jacko, Chen or anyone else. He was tired and 

nodded off when the police interviewed him because he had taken ecstasy and smoked 

marijuana; he did not “[shake] his head yes” when the officer asked if he had robbed 

someone. Smith felt it didn’t matter what he told the officers because they didn’t believe 

what he said and weren’t going to let him go. 

Yohana was one of Smith’s girlfriends. He was not with her on October 2, 15 or 

21 and he never knew her to use the name “Lola.” Yohana came to see him at the 

preliminary hearing and sat in the audience. 

Smith gave markedly inconsistent and confusing accounts of his activities the day 

he was arrested. He testified he was at Antoine’s house for an hour or two until he left 

around 3:00 or 4:00 p.m. to go to his friend Donte’s house, although he also said he got to 

Antoine’s house around 8:00 or 9:00 in the morning. He borrowed Antoine’s phone and 

took it with him when he left; that was the phone he was carrying when he was arrested. 

He went to Donte’s house at 6:00 or 7:00 that evening. Later he testified he went from 

Antoine’s house to Donte’s around 3:00 p.m. 

Yohana came by Donte’s around 9:00 or 10:00 p.m., and they left to go to the 

store. Initially Smith testified Donte drove them to the store, but he later said they 

 

4 Smith was charged with robbing Maynunah Rasheed on October 2, 2013. 

Rasheed testified that she was robbed by an African American man and woman when she 

tried to deliver a pizza to a woman named Lola at 2235 East 23rd Street. The man took 

her handbag, but all it contained was a taser, a pen and a flashlight. The court dismissed 

the charges related to the October 2 robbery under Penal Code section 1118.1 after 

Rasheed was unable to identify Smith in court. 
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walked to the store from Antoine’s house. Smith said he and Yohana were only together 

20 or 30 minutes before police arrested them, but then he said they were at Donte’s for a 

couple of hours, and later changed that to less than an hour and said he left Donte’s for 

the store before 8:00 p.m. Smith and Yohana finished shopping and were arrested within 

20 minutes of the time they left for the store. Smith could not explain how it was that 

they were not arrested until 11:00 p.m., three hours after he said they left Donte’s. 

Smith also testified that he and Yohana met up earlier, at Antoine’s house, at 

“nighttime kind of. Not all the way nighttime.” It was dark out, maybe 9:00 or 10:00 

p.m. They went to the store from Antoine’s. They had been at Donte’s house “way 

before” that, in the evening. Yohana came over to Donte’s, but left and came by 

Antoine’s later at night. Smith had been at Antoine’s house first, then someone whose 

name he did not know picked him up at Antoine’s and drove him to Donte’s around 3:00. 

Around 8:00 or 9:00 p.m. a friend named D. picked him up at Donte’s and drove him to 

Antoine’s house. Yohana arrived around 10:00 and they left for the store “as soon as she 

got there . . . like five minutes after she got there.” Asked about his testimony that 

Yohana arrived about 30 minutes before they left, Smith said that they “didn’t actually go 

straight to the store.” 

Smith acknowledged that he lied when he told police he was with Yohana the 

previous night, and when he said he spent the night with Kevin. He was scared and 

didn’t want to get anyone in trouble. Smith did not know anyone named Kevin. 

Verdict and Sentence

The jury found Smith guilty of robbing Chen, Jacko and de Oliveria and assaulting 

de Oliveria with a semiautomatic firearm, and found the firearm use allegations true. The 

court imposed the aggravated five-year term for the de Oliveria robbery with a 

consecutive ten-year term for the firearm enhancement; imposed and stayed a 16-month 

term with a three-year enhancement for the assault; and imposed and stayed two 

concurrent one-year terms with ten-year enhancements for the Jacko and Chen robberies. 

Imposition of sentence for Smith’s conviction of assault with a semiautomatic firearm 

was stayed pursuant to section 654. 
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Smith filed this timely appeal. 

DISCUSSION

I. The Evans Motion

Smith contends the court abused its discretion when it denied his motion for a 

pretrial lineup pursuant to Evans, supra, 11 Cal.3d 617. We disagree. The court 

determined the motion was brought too late and that Smith’s arguments about the witness 

identifications were more appropriately made to the jury. The ruling was well within the 

court’s discretion.

Background

Smith was arrested on October 22, 2013, and charged by complaint two days later. 

On March 10, 2014, he filed a motion requesting a pretrial lineup in which he would 

appear before the four robbery victims. Smith argued there was a reasonable likelihood 

of mistaken identification [b]ased on the remote identification [] of the defendant in only 

one of four robberies, based on being primarily with a black woman, the suggestiveness 

of the field show-up, the brevity of the incident, and defendant’s denial of the crimes 

charged.” 

The prosecutor opposed the motion. She argued that too much time had elapsed 

since Smith’s arrest the previous October and that the preliminary hearing had been 

rescheduled multiple times. She also maintained an Evans lineup was inappropriate 

because Jacko identified Smith immediately after the robbery; Smith was arrested with 

the phone used in all four robberies; and he was arrested in the company of a woman who 

matched the descriptions from all four crimes, was also identified in the in-field show-up, 

and pleaded guilty to the robberies. 

Defense counsel apologized for her delay in bringing the motion “because I was in 

trial from November 12th until last Thursday, when the jury came back and acquitted my 

client, so that’s my only explanation. It’s not an excuse, but an explanation for the 

delay.” On the merits, she argued that Yohana had committed a series of robberies with 

different African American men, Smith just happened to be with or near her when she 

robbed Jacko, and there was “absolutely no evidence to connect him—other than being 
9

an African American male in Oakland, to connect him to the other three robberies. And I 

would say that the Evans motion should be granted as to the first three robberies to give 

the witnesses an opportunity to either pick out my client or not pick out my client. It’s 

cheaper than a trial.” 

The court denied the motion. It explained that “it’s been 142 days at least that 

your client has been in custody and that’s problematic in terms of the time element. [¶] 

And the arguments that you make, I think, are better made to a trial jury, so this motion is 

denied.” A month later, on April 7 and 8, 2014, Chen and Jacko identified Smith at the 

preliminary hearing; de Oliveria did not testify. The trial began on August 25. 

DISCUSSION

“[D]ue process requires in an appropriate case that an accused, upon timely 

request therefore, be afforded a pretrial lineup in which witnesses to the alleged criminal 

conduct can participate. The right to a lineup arises, however, only when eyewitness 

identification is shown to be a material issue and there exists a reasonable likelihood of a 

mistaken identification which a lineup would tend to resolve.” (Evans, supra, 11 Cal.3d 

at p. 625.) “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. [Citation.] 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.” (Ibid.)

“The broad discretion vested in a trial judge or magistrate includes the right and 

responsibility on fairness considerations to deny a motion for a lineup when that motion 

is not made timely. Such motion should normally be made as soon after arrest or 

arraignment as practicable. We note that motions which are not made until shortly before 
10

trial should, unless good cause is clearly demonstrated, be denied in most instances by 

reason of such delay.” (Evans, supra, 11 Cal. 3d at p. 626.)

Smith maintains it was an abuse of discretion to deny his motion because, quoting 

Evans, it was made “ ‘as soon as practicable’ ” after his arrest or arraignment. (Evans, 

supra, 11 Cal. 3d at p. 626.) But the trial court found the lapse of “at least 142 days” 

between Smith’s arrest and his request for a lineup was not “as soon as practicable,” and 

we cannot fault that conclusion. The request was made more than four months after 

Smith’s arrest, a period during which the witnesses’ memories could have faded and 

Smith’s appearance could have changed. The trial court could also reasonably find 

defense counsel’s explanation for the delay was inadequate. Counsel attributed it to 

another trial that lasted from November 12 until March 13, but she gave no reason for 

failing to promptly request a lineup before November 12 or enlist associate counsel to do 

so while she was occupied with her other case.

Smith argues that the critical focus under Evans is “not on the time lapsed from 

the arrest or complaint but on the proximity to trial.” But that is not what Evans says. 

Indeed, in People v. Abel (2012) 53 Cal.4th 891, in response to a defense argument that a 

belated Evans motion was appropriate because a continuance of the trial after the motion 

was filed lessened the burden on the prosecution, the Court expressly refuted the 

argument Smith makes here: “[A] lineup is always burdensome, and that the trial was 

continued does not justify defendant’s delay in making the motion.” (Id. at pp. 912–913, 

italics added.)

We are also unpersuaded that counsel’s failure to bring a timely Evans motion 

constituted ineffective assistance of counsel. To establish ineffective assistance of 

counsel, a defendant must show both that his attorney’s performance fell below an 

objective standard of competence and a reasonable probability of resulting prejudice. 

(Strickland v. Washington (1984) 466 U.S. 668, 687.) “Unless a defendant establishes 

the contrary, we shall presume that ‘counsel's performance fell within the wide range of 

professional competence and that counsel’s actions and inactions can be explained as a 

matter of sound trial strategy.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) “If the 
11

record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an 

appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was 

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation.’ ” (Ibid.)

At the Evans hearing in this case counsel told the court that her other trial was “my 

only explanation. It’s not an excuse, but an explanation for the delay.” But able counsel 

could reasonably believe it would better serve her client to delay any lineup until, if one 

were permitted, the chances of a positive identification might have decreased as the 

events became remote, and a positive identification could be challenged based on the 

passage of time. To be clear, we do not mean to imply that counsel was dishonest with 

the court. However, her carefully worded explanation did not rule out the possibility that 

tactical considerations as well as the press of business informed the timing of Smith’s 

Evans motion.

In the end, though, Smith’s claim of ineffective assistance of counsel would fail 

even if counsel’s explanation for the delay were unambiguous. As we have noted, the 

court denied the motion on the merits as well as due to its untimeliness: “[T]he arguments 

that you make, I think, are better made to a trial jury, so this motion is denied.” The 

record suggests no reason to think the court would have viewed the value of a pretrial 

lineup differently had Smith asked for one sooner. As Smith has not shown a reasonable 

probability that an earlier motion would have prevailed, his ineffective assistance claim 

cannot prevail. (Strickland v. Washington, supra, 466 U.S. at p. 687.)

II. Smith’s request that de Oliveria describe his assailant before seeing Smith in court

Smith argues the court abused its discretion and denied him due process of the law 

when it denied his request to have Mr. de Oliveria describe him before viewing him in 

court. Here too, we disagree.

Background

Mr. de Oliveria did not see Smith between the night he was robbed and the trial. 

Shortly before de Oliveria was to testify, Smith’s attorney asked that her client be seated 

out of de Oliveria’s direct view when de Oliveria took the stand. She argued that 
12

because de Oliveria had not previously identified Smith and had described the robber 

only as an African-American male, “this is unduly suggestive to my client, to have my 

client sit here and have the witness stare at him and describe him and identify him as the 

robber or the person who is behind him. . . . I believe it’s an issue of due process at this 

point. My client has a right to have an identification that’s made.” Asked for legal 

grounds for the request, defense counsel stated she was relying on the authorities cited in 

Smith’s Evans motion. 

The court reviewed the Evans motion and denied the request. It explained that, 

like the arguments Smith raised in support of a lineup, “those go to the weight and to 

cross-examination. That is fertile ground for cross-examination, and I will entertain any 

suggested factors that you would like me to include in the jury instruction.” 

Discussion

There seems to be no California authority directly on point, but general principles 

well established in our state undermine Smith’s contention that the ruling was an abuse of 

discretion and violated due process guarantees. 

In People v. Rodrigues (1994) 8 Cal.4th 1060, the Supreme Court rejected a claim 

that the trial court abused its discretion when it found the defendant was not incurably 

prejudiced by a prosecutor’s failure to promptly notify him of a potential identification 

witness. The defendant argued the delay prevented him from “test[ing] [the witness’s]

ability to make an identification in a nonsuggestive atmosphere.” (Id. at p. 1155.) The 

Court disagreed. Making reference to Evans it explained: “Insofar as defendant contends 

that an in-court identification not preceded by a lineup is impermissibly suggestive and 

prejudicial as a matter of law, he is wrong. [Citation.] He is also mistaken in his 

assertion that once Mitchell made his in-court identification of defendant, ‘there was no 

effective way to ameliorate its impact and no way to balance the playing field between 

the prosecution and defense.’ To the contrary, it 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 without the 
13

necessity of depending on an attempt to picture a past lineup by words alone.’ ” (Id. at p. 

1155.)

The Ninth Circuit has similarly recognized that, although initial in-court 

identifications are inherently suggestive, it is an abuse of the court’s discretion to deny a 

request for a less suggestive procedure only if the resulting identification is “so 

‘ “unnecessarily suggestive and conducive to irreparable misidentification” as to amount 

to a denial of due process of law. . . .’ ” (United States v. Domina (9th Cir. 1986) 784 

F.2d 1361, 1369 (Domina).) Quoting the United States Supreme Court, Domina

foreshadowed Rodrigues when it observed that “ ‘[c]ounsel can both cross-examine the 

identification witnesses and argue in summation as to factors causing doubts as to the 

accuracy of the identification—including references to both any suggestibility in the 

identification procedure and any countervailing testimony such as alibi.’ ” (Ibid, quoting 

Manson v. Brathwaite (1977) 432 U.S. 98, 113–114, fn.14.) But “[t]here is no 

constitutional entitlement to an in-court line-up or other particular methods of lessening 

the suggestiveness of in-court identification, such as seating the defendant elsewhere in 

the room. These are matters within the discretion of the court.” (Domina at p. 1369; 

accord, United States v. Williams (9th Cir. 1970) 436 F.2d 1166, 1168.) 

Here, defense counsel cross examined de Oliveria about his description of the two 

suspects and the circumstances in which he saw them. She asked that the record reflect 

that he looked at Smith as he prepared to describe what he recognized about him from the 

night of the robbery. The trial court instructed the jury on the factors affecting the 

accuracy of eyewitness identification, including whether the witness was asked to pick 

the perpetrator out of a group and whether he or she was able to identify the defendant in 

a photographic or physical lineup. Defense counsel challenged de Oliveria’s and the 

other victims’ identifications at length during closing argument. On this record, the 

standard procedure by which de Oliveria identified Smith in court was neither an abuse of 

the court’s discretion nor a violation of his right to due process of law.

It is true, as Smith argues and both our state and federal Supreme Courts have 

acknowledged (see Abel, supra, 53 Cal.4th at pp. 891, 913; Moore v. Illinois (1997) 434 
14

U.S. 220, 230 fn. 5), a defendant’s presence at the defense table is inherently suggestive. 

But neither holds, as Smith urges us to do, that “in-court identification is unnecessarily 

suggestive when alternative procedures are readily available.” To the contrary, while 

Moore observed that seating the defendant away from the defense table is one of various 

ways courts may ameliorate such suggestiveness, it affirmed that “such requests are 

ordinarily addressed to the sound discretion of the court” and expressly declined to opine 

on whether, had the request been made, the trial court would have been required to grant 

it. (Ibid.) Here, where Smith’s counsel vigorously challenged the witness identification 

testimony through cross-examination and argument and the jury was instructed on how to 

assess such testimony, the court reasonably determined Smith’s due process rights were 

adequately protected. There was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.