People v. Lewis

• Decision Date: 02 November 1977
• Docket Number: Cr. 29352
• Citation: 74 Cal.App.3d 633,141 Cal.Rptr. 614
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Otis LEWIS, Defendant and Appellant.

Page 614

141 Cal.Rptr. 614

74 Cal.App.3d 633

The PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Otis LEWIS, Defendant and Appellant.

Cr. 29352.

Court of Appeal, Second District, Division 5, California.

Nov. 2, 1977.

Hearing Denied Dec. 29, 1977.

Adley M. Shulman, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Div., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

In a jury trial appellant was convicted on multiple counts involving three different victims of first degree burglary (three counts, including one with great bodily injury), attempted murder, first degree robbery, assault with a deadly weapon, and rape. He was also found to have been armed with a deadly weapon on three of the counts, and the trial court found true a prior conviction of robbery. The court sentenced appellant to state prison consecutively on three counts involving different victims (assault with a deadly weapon, first degree robbery, and burglary with great

                bodily injury), and stayed execution of sentence on the other counts with provision for the stay to become permanent upon service of sentence on the three pertinent counts.  1  This appeal is from the judgment
                

FACTS

At approximately 10 a. m., December 3, 1975, appellant knocked on the door of Mrs. Christine Behling's home in the San Fernando Valley. After asking if her husband was at home and if she was interested in janitorial services, appellant forced his way inside, grabbed Mrs. Behling with one hand and held a knife at her arm with the other hand. Mrs. Behling screamed, and when Mrs. Behling's mother called out from another room, appellant ran. Mrs. Behling identified appellant in court and at a lineup.

At 2:30 p. m. December 16, 1975, appellant pushed his way into the home of Mrs. Catherine Monarch in Granada Hills after asking if her husband was at home and if she wanted any cleaning services. Appellant drew a knife, pushed Mrs. Monarch to the floor, and held the knife at her throat. He thereafter took money from her purse and raped her. He then left, telling her to wait in the bedroom and not to run after him. Mrs. Monarch identified appellant at trial and at a lineup. Appellant's fingerprint was taken from the inside front door of the Monarch residence.

At 2:30 p. m. that afternoon a neighbor of Mrs. Monarch's, Gary Hart, saw a black man driving a brown Cadillac slowly down the street looking at houses. He wrote down the license number, 252KIA, and identified People's exhibits 7 and 8 as photographs of the car.

At 1:30 p. m. on January 21, 1976, appellant pushed his way inside the front door of the home of Cheryl Lipkin in Panorama City after asking if she wanted her house cleaned. Appellant took a knife from his pocket and pushed Mrs. Lipkin down on the living room floor. She screamed and resisted, and appellant stabbed her six times. Despite the struggle and her injuries, she was able to lunge out the front door, screaming for help from her neighbor, Chris Tripoli. Mrs. Lipkin observed appellant run to his car, and she saw the middle two numbers of the license plate, "52." Mrs. Lipkin identified appellant at trial and at a video tape of the lineup.

Christine Tripoli, the next door neighbor, came out into her yard in response to the screams and saw a black man run to a gold Cadillac parked in front of her house. She wrote down the license plate number, 252KIA, and identified exhibits 7 and 8 as photographs of the car.

Another neighbor, Cheryl Finger, heard the screams and observed appellant running from the Lipkin house to the gold Cadillac, whose license number, 252KIA, she wrote down. She identified appellant at trial and at a video tape of the lineup, and identified the photographs of the car.

As a result of the stab wounds, Mrs. Lipkin was hospitalized for 11 days, several days in intensive care. The wounds were all in or around the left side of her chest and resulted in internal bleeding of about one liter of blood, which is 15 to 20 percent of a person's entire blood supply.

Identification papers belonging to appellant were found on the front porch of the Lipkin home. Appellant was arrested that evening at his residence, where police officers observed a gold Cadillac, license number 252KIA, shown in exhibits 7 and 8. When appellant put his pants on, the arresting officer noticed a red smear on them.

After advice and waiver of his constitutional rights, appellant stated to Officer Bellante that he had been driving aimlessly in Panorama City thinking about his problems and found himself driving repeatedly over the same street. He approached a house to solicit for his maintenance service, and the screen door was opened for him to Appellant presented a defense of mistaken identification, through testimony that some witnesses had indicated another person looked like or might possibly be the suspect.

give his card. "The next thing I knew, she was on the floor and I was on top of her. I heard her screaming, and I looked up and seen a small boy standing next to us crying and screaming. I could not understand what the boy was saying. I got scared, and the female got up and left out the front door, and I ran out the front door also. I ran across the front lawn to where my car was parked, and I observed a female standing by her front door next door to where the woman lived. I got in my car and drove off and made the first left turn I could. I pulled over to the curb and looked down at my hands and noticed my hands were covered with blood, and I had a knife in my [74 Cal.App.3d 639] hand." Appellant described his car as a 1965 brown or tan Cadillac, license number 252KIA. Officer Bellante showed appellant the identification papers found in the Lipkin residence and appellant admitted they were his. When asked how he lost them, appellant put his head down and said, "Is she dead?"

CONTENTIONS

Appellant contends (1) that the court erroneously denied appellant's motion to strike his prior conviction; (2) that the showing of a video tape of the lineup was unlawful in the absence of appellant's counsel; (3) that the court erroneously instructed the jury on diminished capacity and intent; and (4) that the method of selecting the jury panel in the Northwest Judicial District of Los Angeles County is unconstitutional. None of these contentions has merit.

PRIOR CONVICTION

The prosecution charged, and the trial court found true, that appellant was previously convicted of a felony, first degree robbery, in April 1972. ² To prove the prior, the prosecution introduced exhibit 1, which contained certified copies of the judgment, the order of commitment to the Youth Authority, and an order of the Superior Court of the City and County of San Francisco, dated April 4, 1972, showing that appellant, who was represented by counsel and who waived his right to trial by jury, pleaded guilty to first degree robbery. Appellant argues that the trial court should have stricken the prior on the ground that exhibit 1 did not show whether appellant had been advised of his privilege against self-incrimination and right to confront and cross-examine witnesses. (Boykin v. Alabama, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.) This contention is without merit.

Denial of the right to counsel is the only constitutional infirmity in a prior conviction which may be attacked by a motion to strike. (People v. Coffey, 67 Cal.2d 204, 215, 60 Cal.Rptr. 457, 430 P.2d 15; People v. Vienne, 30 Cal.App.3d 266, 271-272, 105 Cal.Rptr. 584; People v. Malloy, 41 Cal.App.3d 944, 952-953, 116 Cal.Rptr. 592.) Furthermore, the prior was over four years old, and appellant made no showing whatsoever that he had ever attempted to attack or set aside the plea in a timely or appropriate manner, or that he had an excuse for failing to do so. (In re Ronald E., 19 Cal.3d 315, 321-323, 137 Cal.Rptr. 781, 562 P.2d 684.) In the absence of such showing, the alleged infirmity in the prior was waived and could not be collaterally attacked. (In re Ronald E., supra at p. 322, 137 Cal.Rptr. 781, 562 P.2d 684.) ³

VIDEO TAPE OF LINEUP

Appellant was arrested on January 21, 1976. A lineup was held January 22, which was attended by victims Behling and Monarch and witness Tripoli. A video tape of this lineup was made, and the video tape was shown to witness Finger on January 26 and to victim Lipkin on February 2, after she got out of the hospital. The video tape was viewed by the court on appellant's motion to suppress the identifications by Mrs. Finger and Mrs. Lipkin, and by the jury during trial. There is no suggestion in the record that the lineup itself was unfair or that the circumstances surrounding the two viewings of the tape were prejudicial or unfair to appellant. Appellant nevertheless argues that the video tape identifications should have been suppressed on the sole ground that appellant's counsel was not present during the viewings of the video tape. ⁴ This contention is without merit.

It has repeatedly been held that the right to counsel does not apply to photographic showings as distinguished from live lineups. (United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 37 L.Ed.2d 619; People v. Lawrence, 4 Cal.3d 273, 277, 93 Cal.Rptr. 204, 481 P.2d 212; People v. Rist, 16 Cal.3d 211, 216-217, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Holt, 28 Cal.App.3d 343, 348-349, 104 Cal.Rptr. 572. See also People v. Callaghan, 63 Cal.App.3d 897, 901, 134 Cal.Rptr. 134.) The presence of counsel is not essential in such situations because where the photographs are available at trial, defense counsel has adequate opportunity to disclose to the jury any possibilities for unfairness. (People v. Rist, supra, 16 Cal.3d at...