Opinion
Hearing Granted and Retransferred to Court of Appeal Sept. 24, 1969.
Roger S. Hanson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert T. Jacobs, Deputy Atty. Gen., for plaintiff and respondent.
FOURT, Associate Justice.
This is an appeal from a judgment of conviction of robbery in the first degree.
In an information filed in Los Angeles on September 7, 1967, defendant was charged with robbing Elsie Witkin of certain personal property on August 8, 1967. It was further charged that at the time of the commission of the offense defendant was armed with a shotgun. Defendant pleaded not guilty. In a jury trial defendant was found guilty as charged and was found to be armed at the time of the commission of the robbery. Defendant's motion for a new trial was denied and he was sentenced to the state prison. A timely notice of appeal was filed.
A resume of some of the facts is as follows: shortly after 6:30 p. m. on August 8, 1967, Pearl Ross, a salesgirl at Jewel's Dress Shop located at the intersection of Western and 48th Street in Los Angeles, was seated in the shop looking out of a window toward the street. She there and then saw an old-model station wagon being driven off of Western onto 48th Street. In the station wagon which stopped in front of the shop there were three men. One of the men, wearing an orange-colored The station wagon was driven out of the sight of Mrs. Ross and she then got up and started to wait on a customer of the shop. While waiting on the customer (a matter of a few seconds after the vehicle went out of view) the defendant entered the shop. Defendant was carrying an object wrapped up in a cloth of some sort, such as a sheet. After defendant entered the store, Mrs. Ross saw defendant remove a double barreled shotgun from the cloth covering. Two other employees of the shop, Elsie Witkin and Mildred Cote also saw defendant enter the shop and unwrap the shotgun. Defendant then approached the place where Mrs. Middleman the owner of the store was sitting, then pointed and placed the gun very close to her head. Another man, who was shorter than defendant, also entered the store and he carried a pistol. When defendant approached Mrs. Middleman she stated something like 'We don't buy guns' and defendant responded 'This is the real thing'--'This is a stickup.' Defendant struck the owner with the gun which he was holding. The employees and the customers were directed into an adjoining room and told to lie on the floor, stomachs down. A third man associated in the robbery tapped Elsie Witkin on the shoulder and told her to open up the cash register. While walking to the register she passed defendant and he struck her across the neck. She opened up the cash register and pursuant to directions placed the money from the register (about $300) in a sack and handed it to one of the robbers. While at the cash register Mrs. Witkin saw defendant taking certain expensive clothing from the racks and stacking it onto the floor. At the time the store was well lighted, visibility was good and each of the employees testified positively that defendant was one of the robbers.
Defendant testified that he was in his room at the time of the robbery and that he never owned an orange sweater.
Defendant was arrested on the evening of Sunday, August 13, 1967. The evidence indicates that during the early part of the week defendant was in two police lineups and it was his statement out of the presence of the jury that he was not represented by counsel at the time and that he did not intelligently waive the right to have counsel at the time. Defendant's testimony in this respect followed immediately the testimony of Mrs. Middleman and long before the prosecution had concluded its case. The prosecutor asked for and was denied a short continuance (over the noon hour) within which time to secure witnesses to contradict defendant's testimony. Thereupon the judge struck the testimony of Mrs. Middleman wherein she had positively and certainly identified defendant as one of the robbers. Her testimony was that at a police lineup out of about 20 men she had without suggestion from anyone, selected defendant as one of the robbers. She also stated that it was defendant who had pointed the gun into her face, that she had an opportunity to study his features, his color, height, thick lips, hat, mustache, the orangecolored sweater, and other things, and that defendant 'absolutely' was one of the robbers, that she had gone to the lineup by herself and that no police officer told her anything of the defendant until after she had identified defendant as being one of the robbers. She further testified that at the lineup she 'had in mind' the man she had seen at the robbery--that having seen the man again at the lineup did assist her in making her in-court identification--that she distinctly remembered seeing defendant at the robbery (where defendant among other statements made by him had told her to lie down or he would blow her head off) and at the lineup and in court on several different occasions. The court upon motion of defendant struck her testimony.
Mrs. Ross attended a lineup and looked through the glass in a door and saw 'a lot of fellows' in a room. Defendant was a Mrs. Cote, a clerk at the store, testified that she saw defendant at the store with the shotgun and saw him pointing it at Mrs. Middleman and saying 'This is a stickup,' that she was very close by at the time and had a good look at the features of defendant. She positively identified defendant at the trial as being one of the robbers. There is no evidence that she ever attended a police lineup.
Mrs. Witkin attended a police lineup and was told to look through a small glass window at several men (about ten) in a room. She was sure that defendant was one of the men at the robbery. No suggestions with reference to defendant or otherwise were made to Mrs. Witkin before she observed the men in the jail room. She asked to have defendant put on his hat and she was then more positive than before. She made it clear that her identification of defendant in court was based upon the fact that she had a good look at defendant at the robbery. That she also recognized defendant at the lineup.
Appellant now asserts that it was error to admit into evidence the in-court identification of appellant. The facts in this case show without question that appellant's identification in court came from what the witnesses saw at the robbery and not what was seen at any police lineup. Even if there was any taint to the proceedings because of defendant's not being represented by counsel, if such was the case, the error was insignificant and harmless beyond any reasonable doubt whatsoever. (See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710-711; People v. Coffey, 67 Cal.2d 204, 219-220, 60 Cal.Rptr. 457, 430 P.2d 15.)
There was no denial of due process under the circumstances of this case. Assuming that there was no defense counsel present 'confrontations for identification can be and often have been conducted in the absence of counsel with scrupulous fairness and without prejudice to the accused at trial.' (Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199, 1204.)
The appellant in this case was provided the opportunity to 'allege and prove * * * that the confrontation resulted in such unfairness that it infringed his right to due process of law.' (Stovall v. Denno, supra, 388 U.S. p. 299, 87 S.Ct. p. 1971.) Neither the judge nor the jury believed his testimony.
There is nothing in the record in this case which indicates any unnecessarily suggestive statements or overreaching by the police (or anyone for that matter) at the lineups. Indeed, the record demonstrates that the police were very careful and made no statements to any viewer at the lineups which might be interpreted as being suggestive as to whom to look for or whom to identify until after each viewer had positively selected the appellant on her own initiative as being the robber with the shotgun.
The opportunity for observation of defendant at the time of the robbery was not in any language unsubstantial. The view by the various witnesses was not a fleeting glance but one of a robber with a doublebarreled shotgun standing and walking around within the shop for several minutes and threatening to blow the head of Mrs. Middleman from her body. Furthermore defendant's alibi was most unpersuasive and was disbelieved by both judge and jury.
Appellant also contends that he was held for an illegal period of time before being placed in a lineup. His counsel argues that the lineups were on Wednesday People v. Wilson,
People v. Boone,Lastly appellant asserts that because his arrest may have been without probable cause the judge erred in not finding the arrest to be unlawful. The court ruled properly. (See PEOPLE V. BRADFORD, 70 Cal.2d ----, ----, 74 CAL.RPTR. 726, 450 P.2d 46.)
We have thoroughly considered all of the contentions of appellant and find no merit to any of the contentions made.
The judgment is affirmed.
WOOD, P. J., and THOMPSON, J., concur.