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People v. Leung4/9/1992
ally related to a legitimate state interest and therefore was not unconstitutional. (Ibid.)
The potential for greater abuse, recognized in Johnson as sufficient to uphold a distinction between criminal and civil proceedings with respect to a statutory right, is equally applicable to the distinction made in Code of Civil Procedure section 223. "The purpose of [Penal Code, former section 1078, which governed voir dire in criminal cases], of course, being to expedite the trial of criminal causes, and to correct the abuse which has grown up in this jurisdiction, through tedious and unnecessary examination of prospective jurors in criminal cases. It has become a matter of common knowledge in this state that the efforts on the part of counsel for defendants in criminal cases have developed into attempts to disqualify jurors, rather than to seek to ascertain their qualifications." (People v. Estorga (1928) 206 Cal. 81, 84 [273 P. 575], italics added.) Thus, the California Supreme Court explicitly recognized in Estorga that the voir dire process was being abused in criminal cases and that these abuses were a matter of common knowledge. (Ibid.) Consequently, it is not mere speculation for us to conclude that the voters could have recognized both the existence of, and greater potential for, abuse of the voir dire process in criminal cases and decided that correction of this abuse required restrictions on voir dire in criminal cases.
Johnson established that the prevention of abuse of a statutory right is a legitimate state purpose. Estorga recognized that the voir dire process was particularly subject to abuses in criminal cases where voir dire was tediously and unnecessarily prolonged for improper purposes. By enacting Code of Civil Procedure section 223, the voters took a step towards preventing those abuses. The voters' action was aimed at achievement of a legitimate purpose rationally related to the distinction made by the law. Hence, we are unable to say that the basis for the distinction was irrational. Since the classification drawn by Code of Civil Procedure section 223 is rationally related to a legitimate state purpose, it does not violate defendant's right to equal protection under the California and United States Constitutions.
B. Photo Identification Procedure
Defendants brought in limine motions to exclude evidence of a prearrest photographic identification due to the alleged suggestive nature of the identification procedure. An extensive evidentiary hearing was held to inquire into the circumstances surrounding the identification to determine
whether it was unduly suggestive. After hearing the evidence and arguments, the court ruled that the photo identification procedure was not unduly suggestive. Three of the four eyewitnesses testified at trial about the prearrest photographic identification.
1. Standard of Review
A determination as to whether a pretrial photographic identification procedure violated due process requires the court to first decide whether the identification procedure was impermissibly suggestive. It is only where the procedure was unduly suggestive that the court proceeds to determine whether the suggestiveness of the pretrial identification indicates that there is a substantial likelihood of irreparable misidentification. (Stovall v. Denno (1967) 388 U.S. 293, 302 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967]; Neil v. Biggers (1972) 409 U.S. 188, 198-199 [34 L.Ed.2d 401, 410-411, 93 S.Ct. 375]; People v. Blair (1979) 25 Cal. 3d 640, 659 [159 Cal. Rptr.
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