Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

MEMORANDUM^** 

On October 24, 1984, Joe L. Diaz was convicted in California state court of one count of attempted rape, three counts of penetration by a foreign object, one count of oral copulation and one count of rape. Diaz' sentence was enhanced for the use of a deadly weapon in commission of the crimes and he is currently serving a 15-year state prison term. In his habeas corpus petition, Diaz raised four issues, two of which he pursues in this appeal.¹  Reviewing the district court's denial of the petition de novo, Cavanaugh v. Kincheloe, No. 88-3973, slip op. at 7115, 7121 n. 1 (9th Cir. July 3, 1989), we affirm.

Diaz first contends that his conviction is not supported by sufficient evidence. However, viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found beyond a reasonable doubt that Diaz was the assailant. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Although one victim described her assailant as circumcised and Diaz is not circumcised, there was medical testimony at trial that an uncircumcised individual could, by manual manipulation, make it appear that he is circumcised. As amply explained by the district court, " [a]ny rational trier of fact could have resolved the conflict in testimony by inferring that, since the victim observed the assailant's penis while the assailant was masturbating, that it appeared to the victim that the assailant was circumcised, when, in fact, the assailant was not circumcised."

Similarly, we find no merit in Diaz' contention that the results of the blood grouping and phosphoglucomutase (PGM) tests on secretions taken from one of the victims shows that he could not have been the assailant. Diaz' blood type is O. The victim's blood type, and that of her husband, are A. PGM subtyping indicated that the victim and her husband were "one plus, one plus," while Diaz was "one plus, one minus." A vaginal swab taken after the assault and a swab taken from the victim's underwear indicated only the presence of blood type A material. The vaginal swab did not reveal any readable PGM subtyping activity, and the underwear swab detected a "very weak subtyping result of 2 plus, 1 plus." Therefore, the criminalist who tested the various secretions testified that his results were not conclusive as to whether or not Diaz could be included or excluded as the assailant.

However, this does not mean that the test results compelled the jury to find that Diaz could not have been the assailant. The victim testified that she had intercourse with her husband shortly before the attack. She also testified that her assailant's penis was never near her underwear and that she did not put her underwear back on after the attack. The type A blood could have come from the victim or her husband, not from the assailant. A rational trier of fact could find sufficient evidence to convict Diaz, independent of the inconclusive laboratory evidence.

Diaz next appears to argue that he was denied due process by the admission of prejudicial and unreliable identification evidence because one or both victims could not identify him in a photographic line-up, but both identified Diaz in open court during his trial. This claim is without merit. First, contrary to Diaz' assertions, the evidence demonstrates (and the district court determined) that both victims identified Diaz as their assailant in separate photographic line-ups. The first victim was attacked on October 17, 1983 and identified Diaz in a photographic lineup on April 2, 1984. She was "almost positive" Diaz was her assailant. The second victim was assaulted on April 1, 1984 and positively identified Diaz in a photographic lineup approximately one month later.

Second, even if it is assumed that the pre-trial identification procedures were unnecessarily suggestive in this case,²  the central question is whether both the pre-trial and the in-court identifications were reliable under the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 106, 114 (1977).³  The reliability and, therefore, the admissibility of identification testimony turns on a number of factors, including

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Brathwaite, 432 U.S. at 114; Van Pilon v. Reed, 799 F.2d 1332, 1339 (9th Cir. 1986); Ponce v. Cupp, 735 F.2d 333, 336 (9th Cir. 1984). Against these factors, we weigh "the corrupting effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114.

One victim got an "excellent look" at her assailant during the morning attack and testified that during the 7-minute encounter she could see him about 20 percent of the time. She further testified that she focused her attention on her attacker's face, and was "surprised" that she was able to get such a good look at him. She fully described the clothing, build and facial features of her assailant to an officer shortly after the incident, and helped prepare a composite drawing after only two or three days. Finally, at both the photographic line-up approximately one month after the attack and the in-court identification, she testified that she was "absolutely positive" that Diaz had assaulted her. Her identification was clearly reliable.

The identification of Diaz by the second victim is a closer question, but we nonetheless find that it was reliable. She first saw her nighttime attacker, whom she recognized she had seen in the vicinity on three prior occasions, in an area 75 feet from a lighted telephone. During the 15-20 minute encounter where there was a "little light," she was on her back and able to look at his face generally, and at one point fixed him with a brief "stare." After three days, she assisted the police in preparing a composite drawing of her attacker and gave a complete description of his build, moustache and clothing. Although the lapse of six months between the attack and the photographic line-up is a negative factor tending to undermine reliability, the second victim was nonetheless "almost positive" that Diaz was her assailant, testifying specifically that "you don't forget those kinds of things." She also positively identified Diaz at the preliminary hearing and in court at his trial.

Because both the pre-trial and in-court identifications are reliable, even if we assume that the photographic array was suggestive, Diaz was not denied due process by the admission of the identification evidence.

The district court's denial of Diaz' petition for a writ of habeas corpus is AFFIRMED.