People v. Bustamante

• Decision Date: 22 October 1981
• Docket Number: Cr. 21740
• Citation: 177 Cal.Rptr. 576,634 P.2d 927,30 Cal.3d 88
• Court: California Supreme Court
• Parties: , 634 P.2d 927 The PEOPLE, Plaintiff and Respondent, v. Rudolfo BUSTAMANTE, Defendant and Appellant.

Page 576

177 Cal.Rptr. 576

30 Cal.3d 88, 634 P.2d 927

The PEOPLE, Plaintiff and Respondent, v. Rudolfo BUSTAMANTE, Defendant and Appellant.

Cr. 21740.

Supreme Court of California, In Bank.

Oct. 22, 1981.

Rehearing Denied, Nov. 19, 1981.

Paul T. Suzuki, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

James R. Jenner, Public Defender, Alameda, Jay B. Gaskill, Asst. Public Defender, Michael Samuel Ogul, Quin Denvir, State Public Defender, and Jean R. Sternberg, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Carol Wendelin Pollack and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

Herb Jackson, Dist. Atty., Sacramento and George M. Hendrickson, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, established the right of a defendant under the federal Constitution to the assistance of counsel at a pretrial lineup. In People v. Fowler (1969) 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, we followed the reasoning of Wade to hold that defendant is entitled to counsel at a preindictment lineup; in Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, however, the United States Supreme Court limited the right to counsel to postindictment lineups. ¹ We therefore face, as a matter of first impression before this court, the question whether under the California Constitution a California defendant has a right to counsel which extends to preindictment lineups.

We have concluded that we should adhere to the position we took in Fowler that the right to counsel encompasses preindictment lineups and we rest that position on the California Constitution. As we shall explain, judicial recognition of the right to counsel at a lineup arose from appreciation of the proverbial unreliability of eyewitness identification of strangers, and of the dangers that improper, inadvertent or deliberate suggestion at a lineup will irradicably influence identification testimony. Defense counsel, if present at the lineup, could observe irregularities, detect suggestion, and prepare for cross-examination of the identifying witnesses. Because the danger of invalid suggestion and misidentification equally characterizes and applies both to preindictment and postindictment lineups, we conclude that defendant's right to counsel should not be limited to postindictment lineups.

In the present case, defendant Bustamante appeals from a conviction for robbery and various other crimes. He asserts that he was denied the right to counsel at a preindictment lineup at which a witness to the robbery identified him. Applying the principles established in Fowler and reaffirmed in this opinion, we reverse the robbery conviction and remand the matter to the trial court to determine if the witness' testimony rests upon an independent ground untainted by the lineup identification. Since that identification affects only the robbery count, we affirm the conviction on all other counts.

I. Statement of Facts

Charles Grosskopf testified that on March 13, 1979, he returned to his apartment to find two men, a black and a hispanic, inside the apartment. The black man held him while the hispanic took his wallet. The hispanic demanded more money; when Grosskopf said that he had none, the hispanic stabbed Grosskopf. At the preliminary hearing, Grosskopf identified defendant as the person who stabbed him. He repeated that identification at trial.

Joseph Zimmerman also testified at trial that he observed a black and a hispanic enter the apartment building and go upstairs. Five to eight minutes later he encountered Grosskopf bleeding from a knife wound. After defendant was arrested but before charges were filed, Zimmerman identified him at a lineup. Although defendant had requested counsel, none was provided at the lineup. The admissibility of Zimmerman's trial testimony identifying defendant is the principal issue on this appeal.

Matthew Ozaki testified that on March 21, 1979, someone broke into his apartment and took a jacket, two guns, a wallet, and other items. Later that day defendant was arrested for being under the influence of narcotics. A subsequent search of defendant's person and lodging turned up a gun, knives, personal property belonging to Grosskopf and Ozaki, and quantities of cocaine and concentrated cannabis.

Prior to trial, defendant moved to challenge Zimmerman's identification on the ground that defendant had been refused his right to counsel. The trial court denied the motion. Defendant renewed his efforts to exclude the identification testimony at trial. In addition, he called as witnesses two women who had seen the black and hispanic enter and leave the building; both identified defendant at the lineup but said they were not certain of their identification.

The jury convicted defendant of count I, robbery of Grosskopf, and found as aggravating factors that he inflicted great bodily injury (see Pen.Code, § 12022.7), that the victim was 60 years of age or over (see Pen.Code, § 1203.09), and that defendant personally used a deadly weapon (see Pen.Code, § 12022, subd. (b)). In connection with the Ozaki matter, defendant was acquitted of burglary (count II) and theft of a gun (count III), but convicted of receiving stolen property (count IV). Defendant was also convicted of being an ex-felon in possession of a firearm (count V), possession of cocaine (count VI), and possession of concentrated cannabis (count VII).

The trial court sentenced defendant to the upper term of five years for robbery, with a three-year enhancement for the infliction of great bodily injury and a one-year enhancement for the use of a deadly weapon. It further imposed consecutive sentences of one-third of the middle term on counts IV, V, and VI, and a concurrent term for count VII.

Defendant appeals from the judgment. His principal contention relates only to the robbery conviction. He urges that the court erred in admitting the identification testimony of Zimmerman because that witness first identified him at a lineup in which he was denied the right to counsel.

II. Under article I, section 15 of the California Constitution, a defendant has the right to assistance of counsel at a preindictment lineup.

We first examine this case from the perspective of the history of judicial rulings from the date of the rendition of United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, to the present. In Wade, the United States Supreme Court developed constitutional limits as to the admissibility of identification testimony. The witnesses in that case had first identified the defendant at an FBI lineup staged 15 days after counsel had been appointed for defendant; counsel was not notified of, or present at, the lineup. The court ruled that defendant was entitled to counsel at a postindictment lineup, and consequently that the identification testimony should not have been admitted unless the prosecution could show that the testimony originated from an independent source, untainted by the improper lineup. ²

Relying upon cases defining the defendant's right to counsel under the Sixth Amendment (Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the court pronounced a general principle: that a defendant enjoys a right to counsel at every "critical stage" in the prosecution. (388 U.S. p. 227, 87 S.Ct. p. 1932.) It then focused on two problems in particular: the danger that suggestion, intentional or unconscious, will influence the witness' identification; and the difficulty in reconstructing the manner and mode of lineup identification at trial, so that defense counsel would be unable to cross-examine the witness on that subject. These problems led the court to conclude that "there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) as at the trial itself.' (Powell v. Alabama, 287 U.S. 45, 57 (53 S.Ct. 55, 59, 77 L.Ed. 158).)" (388 U.S. pp. 236-237, 87 S.Ct. pp. 1937.)

In People v. Fowler (1969) 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, we concluded that the rules established in Wade and Gilbert governed preindictment lineups. Justice Sullivan, writing for the majority, noted that "(t)he presence or absence of those conditions attendant upon lineups which induced the high court to term such proceedings 'a critical stage of the prosecution' at which the right to counsel attaches is certainly not dependent upon the occurrence or nonoccurrence of proceedings formally binding a defendant over for trial. A lineup which occurs prior to the point in question may be fraught with the same risks of suggestion as one occurring after that point, and may result in the same far-reaching consequences for the defendant." (1 Cal.3d p. 342, 82 Cal.Rptr. 363, 461 P.2d 643.) (Fns. omitted.) ³

Although lower federal courts also interpreted Wade and Gilbert to apply to preindictment lineups (see Wilson v. Gaffney (10th Cir. 1972) 454 F.2d 142, 144; United States v. Greene (D.C.Cir.1970) 429 F.2d 193, 196; United States v. Phillips (9th Cir. 1970) 427 F.2d 1035, 1037), when the issue reached the United States Supreme Court, that court disagreed. In Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, the plurality opinion of Justice Stewart, noting that Wade and Gilbert required counsel only at a "critical stage of the criminal prosecution" (p. 683, 92 S.Ct. p. 1879, citing Gilbert v. California, supra, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178), held that for this purpose the "prosecution" does not commence until ...