People v. Blum

Decision Date21 November 1973
Docket NumberCr. 11314
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Vernon Herbert BLUM, Defendant and Appellant.

Alan B. Exelrod, San Francisco, for defendant and appellant (by order of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, John T. Murphy, Michael Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction on a jury verdict finding him guilty of first degree robbery (Pen.Code, § 211). The main issue is whether the pretrial identification procedures were so suggestive as to deny defendant due process of law.

On March 22, 1972, at about 9 p.m., Thomas Paganini, a liquor store proprietor, was alone in his store. His back was to the front door when he heard someone enter the store. When he turned around he saw a man holding his left hand over his mouth and a gun in his right hand. The gun was pointed at Paganini. The man demanded that Paganini open the cash register, and when he did, the man came around behind the counter and took about $70 from the cash register with his left hand. As he did so he was at one time within a foot and a half from where Paganini was standing. After taking the money the robber departed. He was in the store approximately two to three minutes.

Paganini summoned the police to whom he described the robber as white, about 28 or 29 years of age, about 5 feet 9 or 10 inches tall, weighing about 200 pounds, with a round shaven face that had rough or pockmarked skin and a small moustache, with hair that was light brown and cut short but with sideburns that came to the middle of the ear, and wearing an 'orangy-beige' button-up sweater.

On April 7, 1972, Sergeant Michael Maehler of the San Jose Police Department brought six colored photographs of individuals to Paganini's store and asked him if he could identify anyone. Paganini was unable to do so. Defendant's photograph was not included among these photographs.

Maehler returned to Paganini's store on April 12, 1972, with another group of six photographs. These were black and white, and they included a photograph of defendant taken on April 11, 1972. Maehler handed these photographs to Paganini, asked him to study them, and inquired whether he recognized anyone depicted in the photographs. After looking at the photographs from 15 to 20 minutes, Paganini picked one of the photographs as that of the man who robbed him on March 22. While looking at the photographs, Paganini placed a match cover over the lower part of the face in the photograph selected by him for the purpose of simulating the holding of the hand over the mouth as the robber had done on the night of the robbery.

On April 20, 1972, Paganini attended a lineup at the sheriff's office where he identified defendant among the persons in the lineup as the man who had robbed him. At that time Paganini indicated to Maehler that the hair of the person he identified was longer than it was on the night of the robbery.

At the trial Paganini made an in-court identification of defendant as the man who robbed him. The defense was an alibi to the effect that defendant was elsewhere on the night of the robbery. Defendant testified that he had not cut his hair between March 22 and April 11, 1972, but that he had cut his moustache off because of jail regulations. The latter testimony was rebutted by a prosecution witness who testified that there was no such jail regulation appertaining to defendant's custody. Maehler, testifying on rebuttal, stated that he advised defendant on April 18 that he would be in a lineup on April 20, that at the time of said notification defendant and a moustache, and that when defendant appeared for the lineup the moustache had been shaved off.

Adverting to the pretrial photographic procedure, we observe that the trial judge determined preliminarily that such procedure was fair and that therefore the courtroom identification was not the result of an impermissibly suggestive pretrial photographic procedure. (See Simmons v. United States, 390 U.S. 377, 386--389, 88 S.Ct. 967, 19 L.Ed.2d 1247; Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Feggans, 67 Cal.2d 444, 448--449, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Citrino, 11 Cal.App.3d 778, 783, 90 Cal.Rptr. 80; People v. Neal, 271 Cal.App.2d 826, 831, 77 Cal.Rptr. 65 (cert. den. 396 U.S. 946, 90 S.Ct. 387, 24 L.Ed.2d 249).) We perceive no error in this determination. Accordingly, it was not necessary for the People to show that the courtroom identification had an origin independent of the photographic procedures, the matter of unfairness, if any, being one for the jury's resolution in the face of any evidence of unfairness produced by defendant. (People v. Rodriguez, 10 Cal.App.3d 18, 31, 88 Cal.Rptr. 789; People v. Neal, supra, 271 Cal.App.2d at p. 832, 77 Cal.Rptr. 65.)

We observe, moreover, that the ultimate question in each instance is whether under the totality of the circumstances a defendant was deprived of due process because of an improper pretrial identification. (Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Burns, 270 Cal.App.2d 238, 244--245, 75 Cal.Rptr. 688.) A violation of due process occurs only when the pretrial procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Neil v. Biggers, supra, 271 Cal.App.2d at pp. 199--200, 77 Cal.Rptr. 65; Simmons v. United States, supra, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; Stovall v. Denno, supra, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Lawrence, 4 Cal.3d 273, 280, 93 Cal.Rptr. 204, 421 P.2d 212 (cert. den. 407 U.S. 909, 92 S.Ct. 2431, 32 L.Ed.2d 682).)

In the instant case we find no substantial likelihood of misidentification. The record discloses that immediately after the robbery Paganini gave police a detailed description of the robber whom he had observed from distances as close as 1 1/2 feet. Sixteen days after the robbery (April 7) Paganini was shown a group of six photographs none of which included defendant's picture. Paganini stated that he was unable to identify the robber in any of these photographs. On April 12 he was shown six more photographs from which he picked defendant's picture. Apart from the photographs themselves nothing in the record indicates that Sergeant Maehler in any way suggested to Paganini, who, if anyone, the suspected robber was.

Defendant argues that the photographs were unduly suggestive because only one showed a person with pockmarks on his face and because the photographs were dissimilar. As to pockmarks, such are not clearly shown in the photograph of defendant. With respect to the alleged dissimilarity of photographs, we observe that while the photographs may appear dissimilar, the individuals depicted in several of them fit the general description of the robber as given by Paganini to the police, i.e., 'roundish' face, moustache, receding hairline, and short hair. We observe, moreover, that each of the man depicted in the photographs appears to be of the same general age.

Defendant also contends that he was denied due process of law on the basis that the pretrial lineup was unnecessarily suggestive. This contention is also governed by the principles enunciated in Neil. The fairness of a lineup is to be assessed in the light of the totality of the circumstances. (Neil v. Biggers, supra, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401; Stovall v. Denno, supra, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Bisogni, 4 Cal.3d 582, 587, 94 Cal.Rptr. 164, 483 P.2d 780; People v. Bauer, 1 Cal.3d 368, 374, 82 Cal.Rptr. 357, 461 P.2d 637 (cert. den. 400 U.S. 927, 91 S.Ct. 190, 27 L.Ed.2d 187).) As stated in Bisogni, '(t)he controlling question is whether the lineup was so unnecessarily suggestive and conducive to a mistaken identification that admission of evidence of identifications based thereon resulted in a denial of due process. (4 Cal.3d at p. 585, 94 Cal.Rptr. at p. 167, 483 P.2d at p. 783.)

In this case the totality does not demonstrate unfairness. The lineup was composed of six men each similarly dressed, of the same general height and of approximately the same age. The facial contour of four of the men was essentially similar and three of them had moustaches. The composition of the lineup does not appear to be unfair. Paganini identified defendant even without his moustache. He observed that defendant's hair was longer than at the time of the robbery. This was a pertinent observation since 29 days had elapsed from the day of the robbery to the day of the lineup. These circumstances afford a strong inference that Paganini's identification at the lineup was not tainted by the previous photographic identification procedure.

In sum, there is sufficient evidence to warrant the conclusion that Paganini's in-court identification of defendant was not tainted by either the pretrial photographic procedure or the pretrial lineup. The totality of the circumstances, supported by substantial evidence, justifies the trial court's determination that Paganini's in-court identification of defendant as the robber was based on his observations at the time of the robbery.

At the trial defendant moved to exclude from evidence the photograph of defendant which Paganini had picked out from the group of photographs shown him on April 12. This motion, which the court denied, was predicated on defendant's contention that the photograph had been taken after he was illegally arrested for a narcotics violation. Such a contention was disposed of in People v. McInnis, 6 Cal.3d 821, 825--826...

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