People v. Burns

• Citation: 75 Cal.Rptr. 688,270 Cal.App.2d 238
• Decision Date: 27 February 1969
• Docket Number: Cr. 6994
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Oliver BURNS, Defendant and Appellant.

Page 688

75 Cal.Rptr. 688

270 Cal.App.2d 238

PEOPLE of the State of California, Plaintiff and Respondent, v. George Oliver BURNS, Defendant and Appellant.

Cr. 6994.

Court of Appeal, First District, Division 1, California.

Feb. 27, 1969.

Hearing Denied April 23, 1969.

Paul J. Matzger, San Francisco, under appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction, following a jury trial, of robbery of the first degree. (Pen.Code, § 211.) He makes a number of contentions, each of which we will discuss under separate headings following a narrative of the pertinent facts.

Facts

At approximately 10:00 p.m. on May 27, 1967, Alfred Llamas, a part-time employee, was working alone at the Al Salcedo Service Station on Old Bayshore in San Jose. While Llamas was washing the ladies' restroom he was approached by a robber who was armed with a gun. The armed man told Llamas to raise his hands and to turn over the money. Llamas went to the area next to the gas pumps where the cash box was kept and turned over approximately $50 in currency to the robber who put it in his front pants pocket. Llamas testified that the man who robbed him had a nylon stocking over his face, that he carried a long-barrelled gun, that he wore dark gloves, that he also wore a long-sleeved varied-colored plaid or striped shirt outside of dark trousers. In court Llamas identified items of clothing worn by defendant at the time of his capture subsequent to the robbery as those worn by the man who robbed him.

After pocketing the currency, the robber ordered Llamas to return to the restroom. However, Llamas immediately left the restroom and proceeded to the office area to telephone the police. As he went toward the office he saw the robber get into the driver's side of a parked automobile and drive off toward San Francisco. According to Llamas the automobile was a dark brown 1955 Chevrolet with primer paint spots, black tires and no hubcaps. Llamas stated he could not see whether there was any other person in the automobile. He immediately called the San Jose Police Department. partment.

The first officer to reach the scene was Bruce Wick of the San Jose Police Department who testified that he received a call concerning the robbery at about 10:07 p.m. at which time he was patrolling in a marked vehicle. Officer Wick stated that Llamas described the robber to him as a white male adult between 25 and 27 years of age, about 5 feet 7 inches tall, weighing approximately 170 pounds, and that he had worn a nylon stocking on his face and had on a dark plaid shirt. Llamas further told Wick that the robber carried a long-barrelled small caliber gun and that the automobile was gray or dark brown with primer paint. Officer Wick broadcast this information to police communications.

Officers Block and Christensen of the California Highway Patrol learned of the armed robbery by police radio at around 10:00 p.m. while they were on duty on the Bayshore freeway. At a few minutes past 10:00 the officers sighted a dark automobile with primer paint proceeding north on Bayshore. Two persons occupied the car, and the passenger turned and looked at the patrol vehicle and then slouched down in the seat. The officers followed the automobile for approximately two miles before stopping it with the assistance of a police unit from Menlo Park. The passenger was ordered out of the suspect vehicle and was identified in court by officer Block as defendant. He was wearing a plaid shirt, dark trousers and was about 5 feet 7 inches in height. The driver was identified as the codefendant Sibert. The officers looked in the automobile and saw a carbine rifle in plain sight and found a pellet gun under the front seat. The pellet gun was identified by Llamas as the robbery weapon. The officers also found a pair of dark gloves in the vehicle.

At the time defendant and the codefendant were stopped on the highway, officers Morton and Hilscher of the San Jose Police Department were at the scene of the robbery. While they were in the process of further investigation word was received that the California Highway Patrol had stopped the vehicle, and while officer Hilscher was talking with Llamas, officer Morton shouted at him, 'Hey, Art, the CHP has a vehicle stopped around Marsh and Bayshore as a possible suspect.' After waiting for Llamas to close the service station, the officers drove him to the place where the suspect vehicle had been stopped. On the way there was no discussion of the robbery.

When Morton, Hilscher and Llamas arrived on the scene, defendant Burns was standing to the rear of the suspect vehicle. He was well illuminated by the headlights and spot light of police vehicles on the scene. After getting out of the police Car, Llamas identified defendant Burns as the robber while nearly 60 feet away from him, stating 'That is him, that is the guy, that is the shirt.' Llamas repeated his identification of defendant in court.

A further search of the vehicle revealed a raincoat, a jacket with a nylon stocking in the pocket, dark gloves, and ammunition for the carbine. Approximately $38 was found in the front pockets of defendant's trousers.

The Pre-Trial Identification

At the trial counsel for defendant objected to Llamas' in-court identification of defendant, maintaining that such identification should be preceded by a hearing out of the presence of the jury on the issue of the fairness of the highway identification. The court did not agree with counsel and a separate hearing was not permitted. Defendant asserts that the trial court committed prejudicial error in denying such a hearing, and then argues that we should decide that the out-of-court identification was so unfair as to constitute a denial of due process. We find no merit in either of these contentions.

Before considering these basic contentions of defendant, we first point out that when the fairness of a confrontation is questioned, 'It is up to the appellant to establish that the confrontation resulted in such unfairness and that under the circumstances it infringed upon his right to due process of law.' (People v. Romero, 263 A.C.A. 651, 654, 69 Cal.Rptr. 748, 750; see also People v. Caruso, 68 Cal.2d 183, 184, 65 Cal.Rptr. 336, 436 P.2d 336.) Further, it is clear that 'a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, * * *.' (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; see also People v. Feggans, 67 Cal.2d 444, 448--449, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Irvin, 264 A.C.A. 881, 892, 70 Cal.Rptr. 892; People v. Slutts, 259 A.C.A. 949, 955, 66 Cal.Rptr. 862.) We conclude that in the instant case defendant did not carry his burden of showing vital unfairness and we further conclude that in light of the totality of the circumstances of this case there was no violation of due process.

In pressing his claim that the court should have granted a hearing out of the presence of the jury on the question of the fairness of the highway identification, defendant particularly relies on the case of People v. Douglas, 259 A.C.A. 731, 66 Cal.Rptr. 492 where the appellate court held that where there is a factual conflict concerning the fairness of the confrontation, the trial court should hold a separate hearing on the question of fairness; that if the lineup is found to be unfair, in-court identification can still be allowed if it has independent origin; and conversely, if the lineup procedure is found by the trial court to be fair, the defendant can still offer evidence of unfairness, which evidence goes to the weight rather than the admissibility of the evidence. (P. 735, 66 Cal.Rptr. 492.)

Under the circumstances of the present case, defendant's reliance on Douglas is misplaced, and a special hearing on the fairness of the out-of-court identification was not required. Here we do not have a factual conflict as to the circumstances surrounding the identification since neither the People nor defendant argue with the basic physical circumstances surrounding the identification. It is apparent that from the undisputed facts the trial court determined that the identification procedure was fair and that the conditions under which defendant was identified clearly went to the weight of the evidence before the jury.

Turning to defendant's secondary argument that as a matter of law defendant was denied due process in the identification procedure, we first point out that 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' (People v. Slutts, supra, 259 A.C.A. 949, 954, 66 Cal.Rptr. 862, 865.) Here there was clearly no such advance suggestion. Llamas had already described the clothing and general appearance of defendant and the type of vehicle before he was ever taken to the scene of the identification. Also, the police did not discuss the possible identification in advance. The evidence was clear that Llamas' identification of defendant was based only on his own recollection of the perpetrator of the robbery. The applicable principle, moreover, is one which favors prompt identification of a suspect. As the court stated in Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206, 210 (cert. den. 390 U.S. 964 (1968), 88 S.Ct. 1069, 19 L.Ed.2d 1164): '(W)e do not consider a prompt identification of a suspect close to the time and place of an offense to diverge from the rudiments of fair play that govern the due balance of pertinent interests that suspects be treated fairly while the state pursues its responsibility of apprehending criminals.' This principle finds expression in People v. Irvin, supra, 264 A.C.A. 881, 893--894, 70 Cal.Rptr. 892, 899, as...