IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80076-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ALEJANDRO CARDENAS, JR.,
Appellant.
SMITH, J. — Alejandro Cardenas Jr. appeals his conviction for second
degree assault, alleging that the admission of the victim’s out-of-court photo
identification and subsequent in-court identification violated his due process
rights under the federal and state constitutions. We conclude that the
photomontage used by law enforcement was unnecessarily suggestive.
However, because the court reasonably concluded that there was no substantial
likelihood of irreparable misidentification, we affirm the trial court’s admission of
the identification. Furthermore, we conclude that a different outcome is not
required under our state constitution. Finally, we grant the parties’ request to
amend Cardenas’s community custody term to comply with RCW 9.94A.702.
FACTS
On February 27, 2016, Alberto Alonso was attacked by two men in a 7-11
parking lot in Monroe, Washington. The men punched him repeatedly in his face
and head for 15 to 20 seconds. Alonso, who did not understand English very
well, told hospital staff that day that he did not know who his attackers were. He
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80076-1-I/2
also told a police officer, through the use of an interpreter, that he did not know
the names of his attackers, but that they were two Hispanic men with suspected
gang involvement who used to live in his neighborhood.
After reviewing the 7-11 surveillance video, the police officer prepared a
photographic lineup containing an image of the registered owner of the vehicle
that the attackers had driven. On March 10, 2016, when the officer arrived to
show Alonso the photomontage, Alonso disclosed that he had learned from
friends that the attackers’ names were Alejandro and Carlos. When he viewed
the photomontage, Alonso indicated that neither of the men was included in the
lineup, and that the men who had attacked him were younger than those
pictured.
Based on this information, the police department prepared new
photomontages containing images of Alejandro Cardenas and Carlos Villegas.
The photo montage used for Cardenas depicted six Hispanic men with similar
facial hair. However, four of the photographs were of the same person, such that
Cardenas was one of only three unique people in the lineup. Furthermore,
Cardenas was the only person in the lineup wearing a jail uniform.
Before viewing this montage, Alonso informed the police officer that he
had learned his attackers’ full names, and he identified them as Alejandro
Cardenas and Carlos Villegas. When he viewed the new photomontages, he
picked out Cardenas and Villegas and wrote their names next to their pictures.
Cardenas moved to suppress Alonso’s out-of-court identification as well
as his anticipated in-court identification. He alleged that the flaws in the
2 No. 80076-1-I/3
photomontage created a substantial likelihood of irreparable misidentification that
would make the admission of Alonso’s identification a violation of Cardenas’s due
process rights. The court admitted the identification, concluding that although the
montage was “quite poor,” there was not a substantial likelihood of irreparable
misidentification because Alonso already knew Cardenas’s face. A jury
subsequently found Cardenas guilty of second degree assault. The court
sentenced Cardenas to 9 months in jail, with an 18-month term of community
custody. Cardenas appeals.
ANALYSIS
On appeal, Cardenas alleges that Alonso’s identification should have been
suppressed because it violated his federal due process rights. Furthermore, he
contends that article I, section 3 of the state constitution requires additional
assurances of reliability for eyewitness identification evidence. Finally, the
parties request permission to amend Cardenas’s judgment and sentence to
shorten his community custody term. Because there were sufficient indicia of
reliability supporting Alonso’s identification, we disagree with Cardenas and
affirm the trial court. However, we agree that Cardenas’s community custody
term exceeded the amount of time allowed by statute and grant the parties’
request to amend the sentence.
Standard of Review
The admission of identification evidence is “subject to the sound discretion
of the trial court.” State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
Accordingly, on review we ask “whether there are tenable grounds or reasons for
3 No. 80076-1-I/4
the trial court’s decision.” Id. Unchallenged findings of fact are verities on
appeal. Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015).
Federal Due Process Grounds for Suppression
When law enforcement uses “an identification procedure that is both
suggestive and unnecessary,” a defendant’s federal due process rights are
implicated. Perry v. New Hampshire, 565 U.S. 228, 238-39, 132 S. Ct. 716, 181
L. Ed. 2d 694 (2012). If this procedure creates a “‘very substantial likelihood of
irreparable misidentification,’” the trial court must suppress the evidence. Id. at
232. Where unreliability is not caused by the state or does not cause a very
substantial risk of misidentification, due process does not require suppression.
Id.; State v. Allen, 176 Wn.2d 611, 622, 294 P.3d 679 (2013). Instead, due
process in these cases “protects a defendant against a conviction . . . by
affording the defendant means to persuade the jury that the evidence should be
discounted.” Perry, 565 U.S. at 237.
Accordingly, to succeed on a motion to suppress, the defendant must first
establish that the identification procedure was impermissibly suggestive. State v.
Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002). A procedure is suggestive if it
directs undue attention to the defendant. State v. Eacret, 94 Wn. App. 282, 283,
971 P.2d 109 (1999). If he establishes this, the court then considers whether the
procedure created a substantial likelihood of irreparable misidentification based
on the totality of the circumstances. Vickers, 148 Wn.2d at 118. The reliability of
the identification is accordingly the “central question” in a motion to suppress
identification evidence. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L.
4 No. 80076-1-I/5
Ed. 2d 401 (1972). In answering this question, the court should consider the
totality of the circumstances, including 5 factors described in Biggers: “(1) the
opportunity of the witness to view the criminal at the time; (2) the witness’s
degree of attention; (3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80076-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ALEJANDRO CARDENAS, JR.,
Appellant.
SMITH, J. — Alejandro Cardenas Jr. appeals his conviction for second
degree assault, alleging that the admission of the victim’s out-of-court photo
identification and subsequent in-court identification violated his due process
rights under the federal and state constitutions. We conclude that the
photomontage used by law enforcement was unnecessarily suggestive.
However, because the court reasonably concluded that there was no substantial
likelihood of irreparable misidentification, we affirm the trial court’s admission of
the identification. Furthermore, we conclude that a different outcome is not
required under our state constitution. Finally, we grant the parties’ request to
amend Cardenas’s community custody term to comply with RCW 9.94A.702.
FACTS
On February 27, 2016, Alberto Alonso was attacked by two men in a 7-11
parking lot in Monroe, Washington. The men punched him repeatedly in his face
and head for 15 to 20 seconds. Alonso, who did not understand English very
well, told hospital staff that day that he did not know who his attackers were. He
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80076-1-I/2
also told a police officer, through the use of an interpreter, that he did not know
the names of his attackers, but that they were two Hispanic men with suspected
gang involvement who used to live in his neighborhood.
After reviewing the 7-11 surveillance video, the police officer prepared a
photographic lineup containing an image of the registered owner of the vehicle
that the attackers had driven. On March 10, 2016, when the officer arrived to
show Alonso the photomontage, Alonso disclosed that he had learned from
friends that the attackers’ names were Alejandro and Carlos. When he viewed
the photomontage, Alonso indicated that neither of the men was included in the
lineup, and that the men who had attacked him were younger than those
pictured.
Based on this information, the police department prepared new
photomontages containing images of Alejandro Cardenas and Carlos Villegas.
The photo montage used for Cardenas depicted six Hispanic men with similar
facial hair. However, four of the photographs were of the same person, such that
Cardenas was one of only three unique people in the lineup. Furthermore,
Cardenas was the only person in the lineup wearing a jail uniform.
Before viewing this montage, Alonso informed the police officer that he
had learned his attackers’ full names, and he identified them as Alejandro
Cardenas and Carlos Villegas. When he viewed the new photomontages, he
picked out Cardenas and Villegas and wrote their names next to their pictures.
Cardenas moved to suppress Alonso’s out-of-court identification as well
as his anticipated in-court identification. He alleged that the flaws in the
2 No. 80076-1-I/3
photomontage created a substantial likelihood of irreparable misidentification that
would make the admission of Alonso’s identification a violation of Cardenas’s due
process rights. The court admitted the identification, concluding that although the
montage was “quite poor,” there was not a substantial likelihood of irreparable
misidentification because Alonso already knew Cardenas’s face. A jury
subsequently found Cardenas guilty of second degree assault. The court
sentenced Cardenas to 9 months in jail, with an 18-month term of community
custody. Cardenas appeals.
ANALYSIS
On appeal, Cardenas alleges that Alonso’s identification should have been
suppressed because it violated his federal due process rights. Furthermore, he
contends that article I, section 3 of the state constitution requires additional
assurances of reliability for eyewitness identification evidence. Finally, the
parties request permission to amend Cardenas’s judgment and sentence to
shorten his community custody term. Because there were sufficient indicia of
reliability supporting Alonso’s identification, we disagree with Cardenas and
affirm the trial court. However, we agree that Cardenas’s community custody
term exceeded the amount of time allowed by statute and grant the parties’
request to amend the sentence.
Standard of Review
The admission of identification evidence is “subject to the sound discretion
of the trial court.” State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
Accordingly, on review we ask “whether there are tenable grounds or reasons for
3 No. 80076-1-I/4
the trial court’s decision.” Id. Unchallenged findings of fact are verities on
appeal. Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015).
Federal Due Process Grounds for Suppression
When law enforcement uses “an identification procedure that is both
suggestive and unnecessary,” a defendant’s federal due process rights are
implicated. Perry v. New Hampshire, 565 U.S. 228, 238-39, 132 S. Ct. 716, 181
L. Ed. 2d 694 (2012). If this procedure creates a “‘very substantial likelihood of
irreparable misidentification,’” the trial court must suppress the evidence. Id. at
232. Where unreliability is not caused by the state or does not cause a very
substantial risk of misidentification, due process does not require suppression.
Id.; State v. Allen, 176 Wn.2d 611, 622, 294 P.3d 679 (2013). Instead, due
process in these cases “protects a defendant against a conviction . . . by
affording the defendant means to persuade the jury that the evidence should be
discounted.” Perry, 565 U.S. at 237.
Accordingly, to succeed on a motion to suppress, the defendant must first
establish that the identification procedure was impermissibly suggestive. State v.
Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002). A procedure is suggestive if it
directs undue attention to the defendant. State v. Eacret, 94 Wn. App. 282, 283,
971 P.2d 109 (1999). If he establishes this, the court then considers whether the
procedure created a substantial likelihood of irreparable misidentification based
on the totality of the circumstances. Vickers, 148 Wn.2d at 118. The reliability of
the identification is accordingly the “central question” in a motion to suppress
identification evidence. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L.
4 No. 80076-1-I/5
Ed. 2d 401 (1972). In answering this question, the court should consider the
totality of the circumstances, including 5 factors described in Biggers: “(1) the
opportunity of the witness to view the criminal at the time; (2) the witness’s
degree of attention; (3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the
time between the crime and the confrontation.” State v. Barker, 103 Wn. App.
893, 905, 14 P.3d 863 (2000).
In this case, the court answered the first question by acknowledging that
the photomontage presented to Alonso was “quite poor,” but in answering the
second question, it ultimately concluded that there was “not a very substantial
likelihood of irreparable misidentification.” We agree with Cardenas and the trial
court that Cardenas has met his burden as to the first question. Cardenas is the
only person in the montage wearing the “distinctive striped clothing of a
Snohomish County Jail inmate.” See State v. Ramires, 109 Wn. App. 749, 756,
762, 37 P.3d 343 (2002) (affirming trial court’s conclusion that photomontage
was unduly suggestive where only the suspect was wearing a dark shirt
described by the witness). Furthermore, including multiple unique faces in a
photomontage provides protection against possible random identifications. The
fact that Cardenas was only one of three, instead of one of six, unique people in
the lineup greatly decreased this protection. Thus, the trial court properly moved
to the second step of this analysis.
The trial court’s conclusion that there was not a substantial likelihood of
irreparable misidentification is supported by the record. In an unchallenged
5 No. 80076-1-I/6
finding, the court noted that Alonso told law enforcement on the day of the attack
that the men who attacked him used to live in his neighborhood. A plausible
inference is that Alonso already recognized their faces, even if he did not know
their names. As the defense expert testified at the suppression hearing, there is
a low risk of erroneous identification if the person being identified has an already
familiar face to the witness. Given the presence of some evidence that Alonso
recognized the men, the court was justified in allowing the jury to weigh the
credibility of the identification.
Cardenas disagrees and asserts that the court erred by not making explicit
findings for each of the Biggers factors. While the court could have been more
explicit in its findings, we do not find this to be a reversible error. First, the
court’s findings and oral ruling do touch on the five factors: for instance, its
finding that Alonso was attacked for 15 to 20 seconds speaks to Alonso’s
opportunity to view the suspect as well as his degree of attention. The court
noted that Alonso wrote Cardenas’s name next to his photograph, illustrating
Alonso’s degree of certainty. It noted that the assault took place on February 27,
2016, and that Alonso identified Cardenas in the photomontage on April 11,
which speaks to the time between the crime and the confrontation. Moreover,
Biggers makes clear that the question of reliability of an identification depends on
the totality of the circumstances. Biggers, 409 U.S. at 199. The factors—
particularly the opportunity of the witness to view the criminal at the crime, the
witness’s degree of attention, and the time between the crime and the
confrontation—are most relevant to situations where the witness is identifying a
6 No. 80076-1-I/7
stranger, not a familiar face. See id. Accordingly, the court appropriately found
that the totality of the circumstances illustrates that there was not a substantial
likelihood of irreparable misidentification.
Finally, Cardenas contends that Alonso’s subsequent in-court
identification of Cardenas should have been suppressed. Because the out-of-
court identification is admissible, and because there is evidence Alonso already
recognized Cardenas’s face, the photomontage’s suggestiveness cannot justify
the suppression of the in-court identification. State v. Hilliard, 89 Wn.2d 430,
439-40, 573 P.2d 22 (1977) (“The final contention is that because the
photographic identification was impermissibly suggestive, the in-court
identification should have been suppressed. First, the photographic identification
was not improper. Second, even if the photographic identification procedure
were questionable, the in-court identification is proper if it has an independent
origin.”).
State Due Process Grounds for Suppression
Cardenas also contends that article I, section 3 of the Washington
constitution requires broader protection against suggestive photo identification
than its federal counterpart. We disagree.
As an initial matter, Cardenas did not raise the state constitutional ground
for suppression before the trial court. Under RAP 2.5(a), we need not review a
claim of error that was not raised below, except that a party may contend for the
first time on appeal that there was a manifest error affecting a constitutional
ground. Review under this standard is “appropriate for ‘obvious’ errors that could
7 No. 80076-1-I/8
have been ‘foreseen’ by the trial court.” State v. Ramirez, 5 Wn. App. 2d 118,
133, 425 P.3d 534 (2018) (quoting State v. O’Hara, 167 Wn.2d 91, 99-100, 217
P.3d 756 (2009)), review denied, 192 Wn.2d 1026, cert. denied, 140 S. Ct. 329
(2019). In Ramirez, we declined to address this issue, noting that the trial court
did not commit any obvious or foreseeable error given that “[t]he Washington
Supreme Court has repeatedly refused to recognize constitutional safeguards
regarding eyewitness testimony beyond those set by the federal constitution.” Id.
at 134.
Even if we were to analyze this issue, the outcome would not change. To
determine whether a state constitutional provision grants greater protections than
its federal counterpart, we analyze the factors enumerated in State v. Gunwall.
106 Wn.2d 54, 720 P.2d 808 (1986). These factors are: (1) the state provision's
textual language; (2) significant differences between the federal and state texts;
(3) state constitutional and common law history; (4) existing state law; (5)
structural differences between the federal and state constitutions; and (6) matters
of particular state interest or local concern. Id. at 61-62.
We previously examined these factors in the context of eyewitness
identification in an unpublished decision. State v. Haff, No. 70296-3-I, slip op. at
14-24 (Wash. Ct. App. Feb. 23, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/702963.pdf. In that case, we noted that
the first two factors weigh against an independent interpretation because the text
of the two provisions is “nearly identical.” Id. at 15 (comparing Washington’s
article I, section 3, provision stating, “‘[n]o person shall be deprived of life, liberty,
8 No. 80076-1-I/9
or property, without due process of law’” to the Fourteenth Amendment
statement: “‘nor shall any state deprive any person of life, liberty, or property,
without due process of law.’”). As to the third factor, Cardenas cites no state
constitutional or common law history that weighs in favor of independent
interpretation, which is consistent with our observations elsewhere that “there is
no contemporary record showing a broader meaning was intended by those
adopting the Washington” due process clause. State v. Spurgeon, 63 Wn. App.
503, 506, 820 P.2d 960 (1991).
The fourth factor, preexisting state law, does not establish that greater
limitations should be placed on eyewitness identifications under the state
constitution. To the contrary, our Supreme Court has “traditionally . . . practiced
great restraint in expanding state due process beyond federal perimeters.”
Rozner v. City of Bellevue, 116 Wn.2d 342, 351, 804 P.2d 24 (1991). Cardenas
cites no cases establishing broader protections against faulty eyewitness
identifications in Washington, instead relying only on State v. Bartholomew, 101
Wn.2d 631, 683 P.2d 1079 (1984). This reasoning fails because in that case, the
court did not hold that the state due process clause provided broader protection
than its federal counterpart. Instead, it merely stated that “[o]ur decision rests on
an interpretation of both the state and federal constitutions. However, the
independent state constitutional grounds we have articulated are adequate, in
and of themselves, to compel the result we have reached.” Id. at 644.
Furthermore, as we discussed in Haff, many Washington cases support the
conclusion that the Washington and federal due process clauses provide
9 No. 80076-1-I/10
equivalent protection. Haff, No. 70296-3-I, slip. op. at 20-22.
As we noted in Spurgeon, the fifth and sixth factor generally lean toward
broader protection for defendants under the Washington constitution, but lack
specific links to the relief requested here. The fifth factor supports an
independent construction because the federal constitution is a grant of
enumerated powers, whereas the state constitution is a limit on sovereign
powers. Spurgeon, 63 Wn. App. at 506. Similarly, with regard to the sixth factor,
“the fact that criminal law enforcement is primarily a function of state government
rather than the national government is true for every criminal case.” Id. at 507.
Because the Gunwall factors overall do not support a broader
interpretation of the Washington due process clause, we reject Cardenas’s
contention.
Request To Amend Sentence
The parties request permission to amend Cardenas’s sentence. We
agree that this is appropriate.
When “an offender is sentenced to a term of confinement for one year or
less” for second degree assault, “the court may impose up to one year of
community custody.” RCW 9.94A.702(1)(b)-(c) (applying one-year limit to violent
offenses and crimes against persons); see also RCW 9.94A.030(55) (defining
violent offenses to include second degree assault); former RCW 9.94A.411
(2006) (defining crimes against persons to include second degree assault).
However, while Cardenas was sentenced to only 9 months of confinement, the
court imposed 18 months of community custody, in excess of the limit provided
10 No. 80076-1-I/11
by RCW 9.94A.702.
RAP 7.2(e) provides that after we have accepted review of a decision, our
permission must be acquired before the trial court may modify it. Because
Cardenas’s community custody term is too long, we grant permission to modify
his sentence to comply with the terms of RCW 9.94A.702.
Accordingly, we affirm Cardenas’s conviction and grant the parties’
WE CONCUR: