People v. Banks

Decision Date02 March 1970
Docket NumberCr. 13443
Citation84 Cal.Rptr. 367,465 P.2d 263,2 Cal.3d 127
Parties, 465 P.2d 263 The PEOPLE, Plaintiff and Respondent, v. Michael Wayne BANKS et al., Defendants and Appellants.
CourtCalifornia Supreme Court

Michael Wayne Banks and Calvin Dixon, in pro. per., and Fred E. Corbin, San Diego, under appointment by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Walter E. Wunderlich, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendants Michael Wayne Banks and Calvin Dixon were charged by information with robbery. (Pen.Code, § 211.) The information also charged that defendants were armed with a deadly weapon at the time of the offense (see Pen.Code, § 211a) and alleged one prior felony conviction against each defendant. At the time of arraignment upon the information defendant Banks admitted the prior conviction charged against him, and the prior conviction charged against defendant Dixon was dismissed upon motion of the prosecutor. A jury found defendants guilty of robbery in the first degree. They appeal from the judgments of conviction. 1

On the evening of January 31, 1968, Victor Geroche was working in his liquor store in San Diego. About 7:30 p.m., while Geroche was waiting on customers, three young men entered the establishment. As Luther Reynolds, the last of these customers, was about to leave the store, two of the young men approached the counter and the third took a position at the door. Reynolds, apparently becoming suspicious, returned to the counter and asked Geroche whether something was wrong.

About the same time one of the young men placed a bottle of vodka on the counter and, producing a gun, ordered Geroche to 'Give me what you got.' The latter replied that he didn't have anything. The second man then went behind the counter and opened the cash register. At this point, the third man came up to the register, took money out of it, and left the premises. The man with the gun put the bottle of vodka in a bag and also left. Finally, the man who had opened the cash register took some money from it and started for the door. Geroche drew a revolver and captured him.

In the course of the robbery, Luther Reynolds managed to get out of the store and ran to a nearby market to summon the police. He waited outside the liquor store until they arrived and took the captured robber into custody.

Before the robbery took place, Clyde Holliday, a private patrolman, was on duty in the parking lot adjoining Geroche's store. He noticed four young men in the parking lot and saw three of them enter the liquor store. A short time later he was told by an unidentified person that the store was being robbed. Hurrying there, Holliday observed two of the young men whom he had just seen walk out of the store and return to the parking lot. One of them was carrying a paper bag which was twisted in such a way as to appear to Holliday to contain a bottle. Holliday proceeded into the store and found Geroche holding a gun on another of the young men whom he had seen in the parking lot prior to the robbery. He handcuffed this young man, told Geroche to call the police, and commenced to search the neighborhood in his car for the two other men. The search was unsuccessful.

The young man whom Geroche had apprehended, one Cecil King, informed police that his two accomplices were defendants Dixon and Banks. Police then assembled two sets of five photographs each--one containing a photograph of Dixon and the other a photograph of Banks. They took these to the liquor store and showed them to Geroche by spreading them out on the counter. The latter immediately picked out the photographs of Banks and Dixon as the persons who had robbed him.

Defendant Dixon was arrested on a warrant at his residence on the morning of February 4, 1968. Later that day a lineup, in which Dixon appeared, took place at the offices of the police department. Prior to the lineup the officer in charge informed Dixon 'that he had the right to have an attorney present during the line-up,' but that 'he could waive this right and we would proceed with the line-up.' Dixon stated that '(h)e would go ahead and stand in the line-up without an attorney.' However, Dixon was not informed that if he was unable to hire an attorney to be present at the lineup, one would be appointed for him.

Victor Geroche (the proprietor of the liquor store) and Clyde Holliday (the private patrolman) attended the lineup and positively identified defendant Dixon--Geroche as one of the men who had robbed him, and Holliday as one of the two men he saw emerging from the liquor store after the robbery. Geroche and Holliday also made tentative identifications of another person who appeared in the lineup as the third participant in the robbery. Defendant Banks, who was arrested on February 3 after he attempted to hold up a service station in National City, did not appear in this or in any other lineup.

On February 29, 1968, defendants Banks and Dixon were accused by information of the robbery of Geroche's liquor store. Cecil King, the third robber who was apprehended at the scene of the crime, apparently pleaded guilty at or prior to the preliminary examination.

On April 18, 1968, the cause was called for trial but the jury panel was excused pending determination of various motions by counsel. Defendant Dixon moved to suppress all evidence of the lineup and of in-court identifications upon the ground that the lineup was conducted in violation of the standards announced in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. With the consent of counsel, the motion was continued to permit the court to read the transcript of the preliminary examination. On April 22, the hearing on the motion was resumed and testimony relative to the lineup was received from the officer who had conducted it and from defendant Dixon. The former testified as indicated above that prior to the lineup he advised Dixon that the latter had a right to have counsel at the lineup but that he could waive that right; Dixon testified that no such admonition had been given him and that he had been told merely that he 'was going to go in a lineup.' Argument of counsel was primarily directed to the question whether defendant Dixon could validly waive his right to counsel at the lineup without being first informed that an attorney would be appointed to represent him there if he could not afford one.

The court ruled that in view of the warnings given him according to police testimony, defendant Dixon had waived his Wade-Gilbert right to counsel by participating in the lineup without counsel. It assumed that a valid waiver of the right could not occur absent an admonition that counsel would be appointed if the defendant was indigent, but it referred to the transcript of the preliminary examination, which it had consulted preparatory to the ruling, and apparently concluded therefrom that Dixon had been admonished at the time of arrest in the terms required by Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A proper Miranda admonition of course includes advice that counsel will be appointed if the suspect is indigent, and the trial court concluded that in the circumstances the omission of such advice immediately prior to the lineup did not preclude a valid waiver of Wade-Gilbert rights by voluntary appearance in the lineup. The ruling of the trial court is set forth in the margin. 2

At trial Victor Geroche made a positive in-court identification of defendants Dixon and Banks as two of the three men who robbed his store on January 31, 1968. He further testified concerning his identification of photographs of defendants from the two sets of mug shots which were brought to his store a few days after the robbery. Finally Geroche testified relative to the lineup of February 4, 1968, and his identification of defendant Dixon at that time.

On cross-examination some doubt was cast on the identification evidence given by Geroche. In the course of his direct examination Geroche had testified that Dixon and Cecil King were the two men who had approached the counter during the robbery, and that Banks had remained near the door. When on cross-examination he was shown the photographs which had been displayed to him at his store a few days after the robbery, he identified a photograph of defendant Dixon and stated that He was the one who had stood by the door. Moreover, it was brought out in the course of cross-examination that Geroche was farsighted and wore glasses for close work. When he was asked to examine the photographs he put on his glasses. Geroche stated, however, that he had not worn his glasses when he chose the photographs of Dixon and Banks from among the two sets brought to his store.

Luther Reynolds, the customer who was in Geroche's store at the time of the robbery, was unable to identify either defendant as one of the robbers. He also testified that he had been unable to make an identification at the preliminary examination.

Clyde Holliday, the private patrolman, made a positive in-court identification of defendants Dixon and Banks as the two young men whom he saw emerging from Geroche's store immediately after the robbery. He also testified relative to the lineup wherein he identified Dixon. Holliday's identification was challenged on cross-examination. When he was shown the photographs which had been brought to Geroche's store he chose that of Dixon and stated that it resembled one of the two defendants in the courtroom; the defendant which he indicated was Banks.

Cecil King, the robber apprehended at the scene who had entered a guilty plea prior to trial, was called as a witness for the prosecution. However, he testified that Banks and Dixon were not with him at the time of the robbery....

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