People v. Malich

• Decision Date: 16 February 1971
• Docket Number: Cr. 5605
• Citation: 15 Cal.App.3d 253,93 Cal.Rptr. 87
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Christine MALICH, Defendant and Appellant.

Page 87

93 Cal.Rptr. 87

15 Cal.App.3d 253

The PEOPLE of the State of California, Plaintiff and Respondent, v. Christine MALICH, Defendant and Appellant.

Cr. 5605.

Court of Appeal, Third District, California.

Feb. 16, 1971.

Rehearing Denied March 15, 1971.

Hearing Denied April 14, 1971.

John R. Griffin, Woodland, for defendant-appellant.

Roger E. Venturi and Russell L. Moore, Jr., Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

FRIEDMAN, Acting Presiding Justice.

A jury trial resulted in Christine Malich's conviction of four counts of armed robbery. She appeals from the judgment. We summarize the prosecution evidence describing the four offenses:

Count I: Coral Reef Lodge--Eugenia Owens.

Eugenia Owens was employed by the Coral Reef Lodge, in the unincorporated area of Sacramento County. On the evening of June 6, 1969, Mrs. Owens heard the call bell in the lobby and entered the lobby to respond. Three persons, a man and two women, were in the lobby and inquired about sleeping accommodations. When Mrs. Owens looked up from the desk, the older woman, identified as defendant, was holding a small blue revolver and ordered her to give them all the cash. When Mrs. Owens demurred, defendant told her to comply or she would put a bullet through her heart. After gathering up the money ($418), defendant told the man, identified as Fred West, to get the car. Just after the three robbers left, Mrs. Owens went to the window and saw the car, which bore a license number RAF 984 or RXF 984. She went next door to the coffee shop and reported the incident to two sheriff's deputies who were there.

Count II: Residence of Anthony and Frances Gaffke.

The Gaffkes lived in the unincorporated area of Sacramento County. On June 11, 1969, at about 8:30 or 9:00 p.m., Mrs. Gaffke opened the door in response to a knock. Two men and two women were outside and asked for Tony, which was a name borne both by Mr. Gaffke and his son. They entered the Gaffkes' home without invitation. One of the women held a small black revolver and one of the men also had a gun. The woman with the gun wore high-piled blonde hair. Both Gaffkes identified defendant as the woman with the gun. The Gaffkes were first herded into a bedroom. Mr. Gaffke was then ordered to show them the safe. The two men took him into another room while defendant and her daughter stayed behind and bound Mrs. Gaffke. The robbers took two rifles, a .38 automatic pistol, a coin collection with a face value of $1,400 and Mrs. Gaffke's rings.

Count III: Apartment of Helen Thomason.

Mrs. Thomason managed an apartment complex in the City of Sacramento. On July 1, 1969, at approximately 10:30 p.m., Mrs. Thomason went to the door of her apartment in response to a knock and peered through a peephole. A woman outside said something but Mrs. Thomason had difficulty hearing her and opened the door. The woman and two men pushed into the apartment. The woman, whom Mrs. Thomason identified as defendant, thrust a small black or blue gun in her ribs. Defendant demanded money and ordered the men to tape Mrs. Thomason. Mrs. Thomason's face was taped with surgical tape, a pillow was placed over her face, and defendant then sat on top of the pillow. A cashier's check in the amount of $1,700, a billfold with $8, jewelry, codeine, two wiglets and some sweaters were taken.

Count IV: Coral Reef Lodge: Bernice Conway.

At approximately 11:40 p.m. on June 30, 1969, Bernice Conway was on duty at the same lodge which had been robbed on June 6. A man and woman entered and asked about accommodations. Mrs. Conway went to get a key. When she turned back the woman, identified as defendant, had a small blue gun and demanded money. The robbers took $400 on this occasion.

At the trial each of the five robbery victims (Mrs. Owens, Mr. and Mrs. Gaffke, Mrs. Thomason and Mrs. Conway) identified defendant as the woman robber who held the pistol. Fred West was called as a prosecution witness. He testified that he, Christine Malich and her daughter April had participated in the June 6 holdup of the Coral Reef Lodge and in the Gaffke robbery. A man named Russell Isaacs also participated in the Gaffke episode. West stated that he had driven the robbers to both holdups in his Pontiac car, license number RXF 984. He denied part in the third and fourth robberies.

Introduced in evidence were four wigs found in defendant's apartment. Mrs. Owens said that the woman with the gun wore an elaborately curled blonde wig; Mrs. Gaffke, that the woman had curled 'dirty blonde' hair which was different from that which she wore in court. Mrs. Thomason testified that the woman wore strawberry blonde hair and Mrs. Conway, that she had shoulder-length black hair which appeared to be a wig.

Christine Malich took the witness stand and denied part in any of the robberies. She denied owning a gun. She testified that her daughter, April, was 15 years old.

Lineup and Identification Procedure.

At the opening of the trial and before jury impanelment defendant moved to exclude the identification testimony of Mrs. Owens, Mr. and Mrs. Gaffke and Mrs. Conway, all of whom had previously identified Christine Malich in a police lineup. By stipulation the transcript of the preliminary examination was incorporated in the trial record for this purpose. Ground of the motion was the exclusion of defendant's attorney from a portion of the lineup proceedings.

The same four witnesses and Mrs. Thomason, victim of the robbery described in Count III, had viewed defendant and four other women in a post-arrest lineup conducted by the sheriff's office. Mrs. Thomason was present with a city police officer. At defendant's request Deputy Public Defender was present as her counsel. Pursuant to instructions from a sheriff's officer, each witness viewed the lineup separately and none communicated his reactions to the others. Defendant was the second woman from the left end of the lineup. After leaving the lineup room, each witness (outside the presence of the others) identified defendant as the woman robber who had held the gun.

The city police officer who accompanied Mrs. Thomason raised no objection to Mr. Berkeley's presence when Mrs. Thomason identified defendant following the lineup. Because the other robberies had occurred in the unincorporated area of the county, the sheriff's office conducted the other identification procedures. Although Mr. Berkeley had been present at the lineup, the sheriff's officers denied his demand to be present when the other lineup witnesses were interviewed.

On appeal, defendant charges inherent unfairness in the lineup because of the varying physical characteristics of the five women displayed to the witnesses. A lineup which is 'unnecessarily suggestive and conducive to irreparable mistaken identification' deprives the suspect of due process of law, and an in-court identification based upon that lineup is inadmissible. (Stovall v. Denno (1967) 388 U.S. 293, 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.) The contention requires the court to consider the totality of the circumstances surrounding the lineup. (Stovall v. Denno, supra; People v. Bauer (1969) 1 Cal.3d 368, 374, 82 Cal.Rptr. 357, 461 P.2d 637.)

We have viewed a colored photograph of the lineup. It exhibits five Caucasian women, all clad in jail denims. The woman at the left has dark brown or black hair, the next (defendant) has dull blonde hair and the hair of the next three is reddish. The three at the left (including defendant) are of approximately the same height, the other two are somewhat taller. All are of medium build. The four at the left appear to be of the same general age, that is, between 40 and 50, the tall woman at the extreme right being somewhat younger. None bears a facial resemblance to any of the others. None has extremely distinctive features. The facial idiosyncrasies among the five women are no more marked than those which normally distinguish one person from another. The lineup did not place defendant in a state of comparative physical uniqueness. (Cf. People v. Caruso, supra.) The lineup was not unnecessarily suggestive and not conducive to mistaken identification.

Defendant contends that the sheriff's action excluding her attorney from the actual identification immediately after the lineup violated the rules enunciated in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 81 L.Ed.2d 1178, thus that the trial court was required to exclude the in-court identifications by Mrs. Owens, Mr. and Mrs. Gaffke and Mrs. Conway. People v. Williams (1971) 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942, decided after the trial of this case, holds that the attorney's exclusion from the actual identification after the lineup emasculates the lineup and vitiates an in-court identification based upon it. The Williams decision requires us to hold that Mr. Berkeley's exclusion from the actual identification transformed the lineup into an illegal confrontation as regards these particular four prosecution witnesses. If an in-court identification has a source independent of the illegal confrontation preceding it, its admission is not error. If it has no independent source, then constitutional error results, which must be measured by the 'harmless beyond a reasonable doubt' standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. (See People v. Martin (1970) 2 Cal.3d 822, 831, 87 Cal.Rptr. 709, 471 P.2d 29; People v. Caruso (1968) 68 Cal.2d 183, 189--190, 65 Cal.Rptr. 336, 436 P.2d 336.) That standard calls for reversal if there is a reasonable possibility that the error contributed to the conviction. (Gilbert v. California, supra, 388 U.S. at pp. 288--289, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Gilbert (1965) 63 Cal.2d 690, 702, 47 Cal.Rptr. 909, 408 P.2d 365.)

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