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Name: People v. Mena
Case #: D052091
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/19/2009
Subsequent History: rev. granted 8/26/09, S173973

When a defendant fails to challenge the denial of a line-up motion with a peremptory writ, the issue is waived for direct appeal purposes. Appellant was convicted by jury trial of two counts of assault with gang enhancements and one count of carrying a concealed dagger. At the preliminary hearing, he joined his codefendant in a motion to compel a live physical line-up attended by one of the two victims, but the trial court denied the motion, finding that there was no reasonable likelihood that a misidentification would be addressed by a line-up. Appellant did not pursue the denial with a peremptory writ. The appellate court, although questioning whether the right to seek a line-up (Evans v. Superior Court (1974) 11 Cal.3d 617) even survived Proposition 115, found that due to the unique nature of the motion, failure to pursue the denial with a writ resulted in waiver of the issue on appeal. Once a preliminary hearing at which the victim testifies is conducted, any possible purpose in holding a line-up is defeated as the victim obviously will now be able to identify the defendant as the responsible. The court also held that “nonassociation” probation conditions must include an express requirement of knowledge. (In re Sheena K. (2007) 40 Cal.4th 875.)