Goodwin v. Superior Court, B149818.

• Decision Date: 26 June 2001
• Docket Number: No. B149818.,B149818.
• Court: California Court of Appeals Court of Appeals
• Parties: Michael Frank GOODWIN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Sheriff's Department et al., Real Parties in Interest.

108 Cal.Rptr.2d 553

90 Cal.App.4th 215

Michael Frank GOODWIN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Los Angeles County Sheriff's Department et al., Real Parties in Interest.

No. B149818.

Court of Appeal, Second District, Division 5.

June 26, 2001.

Jeffrey S. Benice, Irvine, for Petitioner.

Steve Cooley, District Attorney, Brentford J. Ferreira and Shirley S.N. Sun, Deputy District Attorneys, for Real Parties in Interest.

No appearance on behalf of Respondent.

WILLHITE, J.^*

INTRODUCTION

California law grants jurisdiction to issue many types of arrest warrants. Thus, for instance, when a criminal complaint is filed, a magistrate may issue an arrest warrant for the accused. (Pen. Code, § 813.) When the grand jury returns an indictment, the court may issue a warrant for the person indicted if he fails to appear for arraignment. (Pen.Code, §§ 945, 979.) Before the filing of criminal charges, the court may authorize a residential arrest by issuing a so-called Ramey warrant (People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333; now codified as Pen.Code, § 817.). The instant case, however, involves none of these standard warrants. Rather, it involves a court order of a novel kind—an ex parte order, issued before the institution of any criminal proceedings, compelling a person who is out of custody to appear at a lineup and submit himself to custody for that limited purpose. We hold that California law does not confer jurisdiction to enter such an order. Hence, we will grant a peremptory writ of prohibition restraining the trial court from enforcing it.

FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 1988, Mickey Thompson and his wife, Trudy, were shot to death at their home in Bradbury, located in the San Gabriel Valley. Their assailants escaped on bicycles. Petitioner and Thompson had been business partners in a venture to promote stadium motocross events. However, the partnership lasted only months and ended in litigation, which petitioner lost. Thompson and petitioner then became fierce competitors and arch-rivals. Although the Thompson murders remain unsolved, law enforcement believes that petitioner is a prime suspect as the person who hired the killers. Petitioner contends he is innocent and has been wrongfully pursued for over 13 years.¹

On March 28, 2001, the same day petitioner held a press conference in Orange County to proclaim his innocence, Detective Mark Lillienfeld of the Los Angeles County Sheriffs Department (the Sheriff) sought an order from respondent court, ex parte, compelling petitioner to attend a lineup at the Los Angeles County Jail. In support of the request, Detective Lillienfeld filed an affidavit under seal.² Respondent court issued the requested order, which directed the Sheriff to conduct a lineup on April 17, 2001, in which petitioner would be a participant. The court ordered the Sheriff "to take [petitioner] into the secure area of the jail for the purpose of conducting the lineup for the period of time necessary to do so." It further ordered petitioner to "appear at the Los Angeles County Men's Central Jail for the purposes of the lineup at the scheduled time," and to cooperate with all directions and procedures connected with the lineup. On the evening of March 28, 2001, the order was served on petitioner at his home.

On April 16, 2001, the day before the scheduled lineup, petitioner filed an ex parte application to quash the order. Petitioner asserted the order was void because it: (1) constituted an improper "seizure" of petitioner without probable cause, in violation of petitioner's Fourth Amendment rights; (2) failed to include an advisement that petitioner was entitled to counsel at the lineup (People v. Williams (1971) 3 Cal.3d 853, 856, 92 Cal.Rptr. 6, 478 P.2d 942); and (3) violated petitioner's Fourteenth Amendment Due Process rights, because it was obtained "as part of a scheme of prosecutorial and investigatory misconduct."

After a hearing on April 26, 2001, respondent court denied petitioner's motion to quash. The court found there was probable cause to issue the order based on the affidavit of Detective Lillienfeld, and there was sufficient information to sign a Ramey warrant "if one was submitted to me." The court modified the order to read "probable cause having been shown" (in place of "good cause having been shown"), and dated the modified order April 26, 2001. The court also ordered that petitioner be permitted to have counsel at the lineup. The court continued the matter to May 7, 2001, to determine the status of the appellate review and to set a new date for the lineup.

Petitioner filed this petition on May 7, 2001, seeking an immediate stay of the order. Initially, petitioner's stay request was denied. Since petitioner had failed to obtain a stay from this court, respondent court set the lineup for May 10, 2001.

On May 8, 2001, we issued a stay order and directed the People, on behalf of the Sheriff as real party in interest, to file an informal opposition to the petition. For purposes of clarity, we refer to the Sheriff as the real parties in interest. The Sheriff filed an informal opposition on May 16, 2001. On May 17, 2001, we issued an alternative writ of mandate. The Sheriff filed a return on June 4, 2001.³

DISCUSSION

We first dispose of the Sheriff's contention that the trial court's order denying petitioner's motion to quash may not be reviewed by extraordinary writ. We deem the petition to be one requesting a writ of prohibition to restrain the trial court from enforcing its order compelling petitioner to appear at the lineup. "`A writ of prohibition is an appropriate remedy to arrest the proceedings of a court when there is not a plain, speedy, and adequate remedy in the ordinary course of the law and when the proceedings of the court are without or in excess of its jurisdiction. [Citations.]'" (Running Fence Corp. v. Superior Court (1975) 51 Cal. App.3d 400, 431-432, 124 Cal.Rptr. 339; see Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291, 109 P.2d 942; De Luca v. Superior Court (1968) 262 Cal. App.2d 254, 261, 68 Cal.Rptr. 535.) Here petitioner plainly has no adequate remedy at law. Further, we will conclude the trial court lacked jurisdiction to enter the order compelling petitioner to appear at the lineup. Thus, prohibition lies.

Before discussing the merits of the specific order in issue, let us set forth certain matters with which we have no quarrel. We do not question the wisdom of a procedure whereby a court may issue an order ex parte, on an adequate showing and before institution of criminal charges, compelling a suspect who is out of custody to attend a lineup. Such a procedure serves the interest of obtaining prior judicial authorization before an intrusion on personal liberty. We also do not question the motives that prompted the Sheriff to proceed in this fashion. Indeed, we commend the instinct to obtain prior judicial approval.

Further, we perceive no constitutional impediment to such a procedure. There is no Fifth Amendment privilege not to attend a lineup. (People v. Johnson (1992) 3 Cal.4th 1183, 1221-1222, 14 Cal. Rptr.2d 702, 842 P.2d 1.) Also, a seizure of one's person for transportation to a lineup, supported by probable cause, clearly would not violate the Fourth Amendment. (See Michigan v. Summers (1981) 452 U.S. 692, 696-697,101 S.Ct. 2587 69 L.Ed.2d 340.) So, too, an order to appear at a lineup on such a showing would comply with Fourth Amendment standards of reasonableness.⁴

Despite these principles, petitioner contends that he possesses a constitutional right not to attend a pre-indictment lineup. He finds this supposed right in the confluence of due process and the right to counsel. However, he has provided us with no authority declaring such a right, and we have found none. Indeed, our Supreme Court has stated that "a defendant generally has no right to refrain from participating in a lineup." (People v. Hart (1999) 20 Cal.4th 546, 625, 85 Cal.Rptr.2d 132, 976 P.2d 683.) The reasons for this general rule are clear. While a defendant possesses a due process right to suppress evidence obtained at an impermissibly suggestive lineup (see People v. Gordon (1990) 50 Cal.3d 1223, 1242-1244, 270 Cal.Rptr. 451, 792 P.2d 251), no court has found a concomitant due process right not to participate in a lineup. Further, under federal law petitioner has no right to an attorney at a lineup held before the initiation of adversary criminal proceedings. (Kirby v. Illinois (1972) 406 U.S. 682, 683, 92 S.Ct. 1877, 32 L.Ed.2d 411 (plur. opn. of Stewart, J.).) In People v. Bustamante (1981) 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927, the California Supreme Court granted a state constitutional right to counsel at a pre-indictment lineup. However, the passage of Proposition 8 on the June 8, 1982 ballot abrogated Bustamante's exclusionary rule when that right is violated. (People v. Johnson, supra, 3 Cal.4th at pp. 1222-1223, 14 Cal.Rptr.2d 702, 842 P.2d 1.)

More importantly, the right to counsel at a lineup is a limited one. Thus, the attorney "`may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate. [Citation.] [¶] At most, defense counsel is merely present at the lineup to silently observe and to later recall his observations for purposes of cross-examination or to act in the capacity of a witness . . . .'" (People v. Bustamante, supra, 30 Cal.3d at p. 99, fn. 7, 177 Cal.Rptr. 576, 634 P.2d 927; see People v. Carpenter (1997) 15 Cal.4th 312, 368, 63 Cal.Rptr.2d 1, 935 P.2d 708 [purpose of counsel at lineup is to detect any unfairness and ensure awareness of suggestiveness by law enforcement]; see also People v. Wimberly (1992) 5 Cal.App.4th 773, 786, 7 Cal. Rptr.2d 152.) Given these severe constraints on the attorney's participation, the...