P. v. Tucek

Filed 3/2/07 P. v. Tucek CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL WAYNE TUCEK,
Defendant and Appellant.
F049306
(Super. Ct. No. SCR005088)
O P I N I O N
APPEAL from a judgment of the Superior Court of Madera County. Charles A.
Wieland, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Stanley Cross, Acting Assistant Attorney General, and Stephen G. Herndon and
David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Michael Wayne Tucek, challenges his conviction for assault with the
infliction of great bodily injury on a person who was at least 70 years of age. (Pen.
Code,1 §§ 245, subd. (a)(1) and 12022.7, subd. (c).) Appellant contends the photo lineup
procedure was impermissibly suggestive and thus he was denied due process by the
admission of the victim’s extrajudicial and in-court identifications. Appellant further
argues that the sentencing court erred in imposing an upper term based on findings of
aggravated facts not found true by the jury’s verdict in violation of Blakely v. Washington
(2004) 542 U.S. 296.
Contrary to appellant’s position, the identification procedure was not unduly
suggestive. However, appellant was improperly sentenced under Cunningham v.
California (2007) ___U.S. ___ [127 S.Ct. 856]. Accordingly, the judgment of
conviction will be affirmed and the judgment of sentence will be reversed.
BACKGROUND
On December 4, 2004, 74-year-old William Merryfield confronted 13-year-old
Ashley after she and two friends took the key to William’s tractor. According to Ashley,
William slapped her face.
Ashley returned home and told appellant, a family friend, what had happened.
Appellant left shortly thereafter.
That afternoon William and his wife were working on their property when a red
car drove up and parked. A man, whom William later identified as appellant, stepped out
of the car, quickly approached William, and punched him in the eye. The first blow
knocked William to the ground. Appellant then continued to punch and kick William.
William spent nine days in the hospital as a result of the assault. On December 9,
while William was hospitalized, Sheriff’s Detective Jack Wayman showed him a photo
1 All further statutory references are to the Penal Code.

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lineup. This array consisted of photographs of six men, including a six- or eight-year-old
photograph of appellant. William looked at this photograph array for 30 to 40 seconds
but made no identification. William testified that he was hardly awake at the time
because he was heavily sedated with pain medication.
On December 14, after William’s release from the hospital, Detective Wayman
showed him another array of six photographs. This time William identified appellant as
his assailant. He testified that he identified appellant “almost instantly.”
The second photograph of appellant was a recent booking photo and looked
considerably different from the first one. In the first photograph appellant has a much
fuller face, wavy and curly dark hair almost to his shoulders, a dark mustache, and a salt
and pepper beard. In the second photograph appellant’s hair is gray, short cropped and
receding, and he has a very trimmed gray mustache and goatee. Appellant’s photograph
was in a different position in each array. However, to keep the backgrounds neutral on
the second array, appellant’s head had been cut out and pasted onto another man’s neck.
Appellant moved to suppress William’s identification. The trial court denied the
request. The court stated “I don’t think that that lineup, either one of them, is suggestive
any more so than any other lineup, much less unduly suggestive.”
William made an in-court identification of appellant at trial. He testified that his
recollection of appellant was from the “scene of the crime,” not from the photo lineup.
DISCUSSION
1. Appellant did not demonstrate the existence of an unreliable identification
procedure.
Appellant contends that William’s extrajudicial and in-court identifications of him
as the assailant were tainted by an unduly suggestive process. According to appellant,
this position is supported by several factors. Appellant notes that William saw his
attacker only momentarily before suffering a severe blow to the head, appellant’s image
was the only one included in both arrays, William was heavily drugged when he viewed

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the first lineup, and appellant’s picture in the second array was the only one that was
altered. Thus, appellant argues, the trial court erred in refusing to exclude that
identification evidence.
In order to determine whether identification evidence violates a defendant’s right
to due process, the court considers (1) whether the identification procedure was unduly
suggestive and unnecessary and, if so, (2) whether the identification was nevertheless
reliable under the totality of the circumstances. (People v. Cunningham (2001) 25
Cal.4th 926, 989.) In ruling on the reliability of the identification, the court takes into
account 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.
(Ibid.)
The defendant bears the burden of showing unfairness as a demonstrable reality,
not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) On appeal, the
claim that an identification procedure was unduly suggestive is subject to the independent
standard of review. (People v. Kennedy (2005) 36 Cal.4th 595, 609.)
Appellant notes that his image was the only one included in both arrays.
Appellant argues that, by repeatedly displaying his picture, the police implicitly advised
William that they believed appellant to be the assailant.
However, the fact that appellant was the only person common to both lineups did
not per se violate his due process rights. (Cf. People v. DeSantis, supra, 2 Cal.4th at
p. 1224.) Furthermore, appellant looked very different in the two photographs. The first
one was at least six years old and was taken when appellant was heavier, had long dark
hair as opposed to short-cropped gray hair, and a dark mustache and salt and pepper
beard as opposed to a very trimmed gray mustache and goatee. Since the two

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photographs were not obviously of the same person, the presence of appellant’s
photograph in both arrays was not unduly suggestive.
Appellant also points out that William was heavily sedated when he viewed the
first lineup. According to appellant, this medicated state may have impacted the way
William mentally processed the photographs and thus, William may have identified
appellant in the second lineup simply because he had seen appellant’s photograph earlier
while in a drugged state.
Appellant provides no factual or legal basis for this claim. Rather, it is pure
speculation. Thus, the fact that William was sedated when he viewed the first lineup
does not assist appellant in establishing unfairness.
Appellant further objects to appellant’s photo having been the only one in the
second array that was altered. As noted above, appellant’s head was pasted on another
man’s neck to provide a neutral background. Otherwise, appellant’s photo would have
stood out as the only booking photo. However, William testified that he did not notice
anything “abnormal” about any of the photos. In fact, appellant admits that the alteration
by itself was not necessarily suggestive.
Thus, even under the independent standard of review, it must be concluded that
appellant did not meet his burden of establishing that the photo lineup was unduly
suggestive. Accordingly, it is not necessary to consider other factors indicating
reliability, such as the victim’s opportunity to view the criminal at the time of the crime.
That analysis comes into play only if the court first decides in favor of the defendant on
the first part of the test.
2. Imposition of the aggravated term infringed on appellant’s federal constitutional
right to a jury trial.
The trial court sentenced appellant to the upper term of four years’ imprisonment
on the section 245, subdivision (a)(1) conviction. As a circumstance in aggravation, the
court found that appellant engaged in violent conduct involving a serious danger to

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society. (Cal. Rules of Court, rule 4.421, subd. (b)(1).) The court noted that, even if
William unlawfully touched Ashley, appellant’s actions were clearly not sanctioned by a
lawful society and were not excused. Appellant was not the child’s father and was not
present when it happened and thus was not defending her. In essence, appellant “went
looking for [William] and beat the hell out of him.”
Appellant contends that the sentence must be reversed because he was denied his
federal constitutional right to a jury determination that the factors supporting the trial
court’s imposition of the aggravated term were true beyond a reasonable doubt.
Appellant is correct. In Cunningham v. California, supra, the United States Supreme
Court held that the use of an aggravating fact, such as the one relied on here by the trial
court, violates the Sixth Amendment.
Nevertheless, “‘[a]n appellate court is not restricted to the remedies of affirming or
reversing a judgment. Where the prejudicial error goes only to the degree of the offense
for which the defendant was convicted, the appellate court may reduce the conviction to a
lesser degree and affirm the judgment as modified, thereby obviating the necessity for a
retrial. (See Pen. Code, § 1260; People v. Harris (1968) 266 Cal.App.2d 426, 434-435
….)’ (People v. Alexander (1983) 140 Cal.App.3d 647, 666 ….)” (People v. Edwards
(1985) 39 Cal.3d 107, 118.)
By analogizing the above type of situation to the present case, it is tempting for us
to simply reduce the imposed upper term to the middle term. However, while the United
States Supreme Court in Cunningham invalidated the process by which the trial court
here imposed the upper term, we cannot say for certain on this record that the same term
may not be imposed anew, consistent with Cunningham.
Accordingly, the judgment of sentence is vacated with directions as follows: If the
People do not bring the matter before the trial court for a contested resentencing hearing
within 60 days after the filing of the remittitur in the trial court, the trial court shall
proceed as if the remittitur constituted a modification of the judgment to reflect a

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sentence of the middle term and shall so modify the abstract of judgment. The People
shall in writing notify the trial court and defendant’s trial counsel of their intentions in
this regard within 30 day after the filing of the remittitur; should the People state an
intention to not contest the modification to the middle term or fail to timely notify the
trial court, the trial court shall promptly modify the abstract of judgment as provided
herein.
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is vacated and
the matter remanded to the trial court for further proceedings in accordance with this
opinion.
_________________________
Levy, Acting P.J.
WE CONCUR:
_______________________________
Gomes, J.
_______________________________
Hill, J.

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