People v. Faulkner, Cr. 10247

• Citation: 104 Cal.Rptr. 625,28 Cal.App.3d 384
• Decision Date: 30 October 1972
• Docket Number: Cr. 10247
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John FAULKNER, Defendant and Appellant.

Page 625

104 Cal.Rptr. 625

28 Cal.App.3d 384

PEOPLE of the State of California, Plaintiff and Respondent, v. John FAULKNER, Defendant and Appellant.

Cr. 10247.

Court of Appeal, First District, Division 2, California.

Oct. 30, 1972.

Hearing Denied Dec. 29, 1972.

Law Offices of Phrasel L. Shelton, Phrasel L. Shelton, David R. Packard, San Mateo, for defendant and appellant (under appointment of 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, Joyce F. Nedde, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KANE, Associate Justice.

Defendant John Faulkner appeals from a judgment of conviction entered on jury verdicts finding him guilty of first degree robbery on two counts (Pen.Code, §§ 211 and 211a) and possession of a firearm by a felon (Pen.Code, § 12021) on two counts.

Facts

The facts giving rise to the above conviction grew out of two isolated robberies: robbery of Daniel Carmon Booth ('Booth') on April 24, 1970 ('first robbery') and robbery of David D. Jones ('Jones') on January 10, 1971 ('second robbery').

First robbery: Booth's testimony concerning the first robbery can be summarized as follows: On April 24, 1970, at approximately 3 p.m., Booth was on duty as manager of the Royal Motel located on MacArthur Boulevard, Oakland. At that time a male Negro, about 5 6 --5 7 tall entered the motel office. He asked the price of a room. He wore a khaki wool 'chuke' cap and had a short moustache and beard. Suddenly, he turned and pointed a revolver at Booth demanding all the money on hand. Booth opened the cash drawer and the man took approximately $19 and then fled from the well-lighted office. Booth identified appellant as the robber both at the pretrial lineups and in court.

Second robbery: On January 10, 1971, at about 5 a.m., Jones was on duty as a hotel clerk at Hotel Ray, located at 492 10th Street, Oakland. A male Negro came in asking about a room, then asked and was allowed to go upstairs to a restroom. About five minutes later the 5 4 prospective lodger returned waving a revolver and carrying a paper sack. Throwing the sack on the floor, he ordered Jones to pick it up and to fill it with money. Jones filled the sack with about $70--80. The robbery took about four minutes, and occurred in a well-lighted office. Jones identified the robber as appellant.

The Lineup Identification Procedures

Appellant took part in two pretrial lineups, on January 13, 1971 ('first lineup') and on January 14, 1971 ('second lineup'). It was stipulated that counsel was not present at either lineup.

In the first lineup appellant occupied position number two among five participants. He was listed as 5 3 tall, weighing 135 pounds. The rest of the subjects were also Negro, with the following physical characteristics: number one: 5 8 , 150 pounds; number three: 5 10 , 163 pounds; number four: 5 9 , 141 pounds; number five: 5 9 , 130 pounds. In the second lineup appellant again occupied the number two position. The other four men, all Negro, had the following physical attributes: number one: 5 7 , 140 pounds; number three: 5 7 , 165 pounds; number four: 5 6 , 150 pounds; number five: 5 7 , 150 pounds. The jailers generally tried to get men of similar height, weight and size for the lineups, if available.

Booth made a tentative identification of appellant at the first lineup. He noticed that appellant was the shortest man in the lineup and based his identification on size, appearance and the words spoken by the lineup subjects. At the second lineup Booth observed that appellant was in the same position and again was the smallest person. However, his identification was not based on height but was made after the subjects wore wool 'chuke' caps of the type worn by the robber. His in-court identification, however, was made solely on the basis of the robbery events.

Jones identified appellant at the first lineup but was not 'fairly certain' or 'positive' of his identification. Although appellant was the shortest man in the lineup, Jones selected him because he fit the description of the man who had robbed him. In any event, Jones noticed little height difference between appellant and the next shortest man in the lineup. Jones attended two preliminary hearings and stated that he became more sure of his identification each time he saw appellant. The record also establishes that no hints or suggestions were made by the police to the identifying witnesses.

After a hearing out of the jury's presence, the trial court found beyond a reasonable doubt that the lineups were fairly conducted and that they had not affected the in-court identifications.

Upon the foregoing evidence appellant was found guilty of first degree robbery on counts one and five, and of possession of a firearm by a felon on counts two and six. On the motion of the district attorney, the remaining counts of the information were dismissed. Probation was denied and appellant was sentenced to state prison as prescribed by law. The court further ordered that appellant be sentenced for the term prescribed by law as to the arming and use clauses of the robbery counts.

Identification

Appellant complains that the pretrial lineups were illegal because they were conducted in the absence of counsel in violation of his Sixth Amendment right (United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178) and were unnecessarily suggestive denying him due process of law (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Bauer (1969) 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637). Appellant insists that since the in-court identifications were tainted by the illegal lineups, they should have been excluded from evidence. We find no merit in any of these contentions.

(a) Appellant's first contention can be summarily disposed of. In a recently decided case, Kirby v. Illinois (1972) 92 S.Ct. 1877, 406 U.S. 682, 32 L.Ed.2d 411, the United States Supreme Court made it clear that the right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings by way of formal charge, preliminary hearing, indictment, information or arraignment.

The record before us discloses that the two successive lineups in which appellant was not represented by counsel were conducted after appellant's arrest but well before the formal charge (information) was filed against him on May 20, 1971. Thus, appellant clearly falls within the rule pronounced in Kirby v. Illinois, supra, making his claim to counsel groundless.

(b) Appellant next contends that the pretrial lineups were unduly suggestive because he was the shortest man in both lineups (5 inches shorter in the first, 3 inches shorter in the second), he was the only one to reappear in the second lineup, and he bore an identical number (No. 2) in both lineups. He also maintains that the in-court identifications by Booth and Jones were tainted by the illegal lineups and had no independent origin. We disagree.

It is, of course, axiomatic that a lineup which is Unnecessarily suggestive and conducive to irreparable mistaken identification deprives the suspect of due process of law and the in-court identification Based upon the lineup is inadmissible in evidence (Stovall v. Denno, supra, 388 U.S. at p. 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Caruso (1968) 68 Cal.2d 183, 187--188, 65 Cal.Rptr. 336, 436 P.2d 336). Contrariwise, it is also established that an in-court identification which does have an origin independent of the pretrial identification is admissible (People v. Martin (1970) 2 Cal.3d 822, 831, 87 Cal.Rptr. 709, 471 P.2d 29).

While it has been suggested that a lineup with a tall defendant among short men could be unfair (United States v. Wade, supra, 388 U.S. at p. 232, 87 S.Ct. 1926, 18 L.Ed.2d 1149), the California cases have held that the height disparity in a lineup is not Per se suggestive (People v. Floyd (1970) 1 Cal.3d 694, 712, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Lyons (1970) 4 Cal.App.3d 662, 667, 84 Cal.Rptr. 535; People v. Elder (1969)274 Cal.App.2d 381, 390--391, 79 Cal.Rptr. 466; People v. Farley (1968)267 Cal.App.2d 214, 218, 72 Cal.Rptr. 855; People v. Tarpley (1968) 267 Cal.App.2d 852, 854--855, 73 Cal.Rptr. 643). Instead, the crucial issue is whether appellant has been singled out and his identification made a foregone conclusion under the circumstances (cf. People v. Caruso, supra, 68 Cal.2d at p. 187, 65 Cal.Rptr. 336, 436 P.2d 336).

The law is well settled that where, as here, it is asserted that the pretrial identification was so unfair as to taint the in-court identification, the trial court must carry out an initial procedure outside the presence of the jury to determine the fairness of the pretrial identification. If the trial court decides that the pretrial identification procedure was fair, the witness may identify defendant in the courtroom without requiring the prosecution to show that the in-court identification has an independent origin (People v. Rodriguez (1970) 10 Cal.App.3d 18, 30--31, 88 Cal.Rptr. 789.) In resolving the fairness of the pretrial identification, the totality of circumstances must be considered (People v. Bauer, supra, 1 Cal.3d at p. 374, 82 Cal.Rptr. 357, 461 P.2d 637), and the conflicts in the evidence must be determined by the trial judge (People v. Rodriguez, supra, 10 Cal.App.3d at p. 30, 88 Cal.Rptr. 789).

Turning to the case at bench in light of the foregoing principles, in must be emphasized that after a proper procedure the trial court here found that the lineups were fairly conducted. This finding by the trial court obviated the further necessity of showing that the in-court identification was based on a source independent of the pretrial identification. Thus, the sole...