People v. Rodriguez

• Decision Date: 29 July 1970
• Docket Number: Cr. 7452
• Citation: 88 Cal.Rptr. 789,10 Cal.App.3d 18
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Franklin RODRIGUEZ, Defendant and Appellant.

Page 789

88 Cal.Rptr. 789

10 Cal.App.3d 18

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Franklin RODRIGUEZ, Defendant and Appellant.

Cr. 7452.

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

July 29, 1970.

John P. Herlihy, San Francisco, for appellant (by appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen. of Cal., Robert R. Granucci, Louise H. Renne, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered and sentence imposed following a jury verdict finding him guilty of petty theft. The information also alleged four prior convictions of petty theft, which defendant admitted prior to trial. By reason of said prior convictions and the sentence imposed in the instant case, defendant stands convicted of a felony. (Pen.Code, § 666.) None of the contentions made by defendant have merit and we accordingly affirm the judgment and sentence.

The Facts

Walter Hoch, owner of Ralph's Appliance Shop in Hayward, testified as follows: That at approximately 6:30 p.m. on September 13, 1967, a customer entered his store. Shortly thereafter a second man entered the store. The latter picked up a crated portable television set and went out of the store. Hoch pursued him for some distance to a 'green '58 to '60 Chevy or Oldsmobile' where the man threw the set into the open trunk of the car and then jumped into the car on the passenger side. The car then sped away. Hoch returned to the store and called the Hayward police, who arrived shortly thereafter. Hoch described the person and the getaway vehicle to the police. Hoch also informed the police that he was able to observe the last three digits of the car's license, to wit: 317.

Hoch testified further that shortly after reporting the incident to the police a police car drove up to his premises with defendant sitting in the back seat of the vehicle. He immediately recognized defendant as the person who had taken the television set. At the trial Hoch made an in-court identification of defendant as the person who had taken the television set.

Elwood Christensen, a Hayward police officer, testified that he was called to investigate the subject theft and pursuant thereto located the vehicle described by Hoch a few blocks' distance from the store at about 6:50 p.m. on the date of the theft. The car found was green and had the license number KZS 317.

Peter Quevedo, a Hayward police detective, also called to investigate the subject theft, testified to having seen defendant walking hurriedly away from the parked vehicle, at approximately 6:45 p.m. on the date of the theft. On the basis of probable cause arising from his radio description of defendant and the vehicle, Quevedo stopped defendant in order to question him regarding the reported theft. Quevedo stated that upon being stopped defendant appeared 'nervous and excited.' Defendant was thereupon placed in the patrol vehicle and returned to the store, where Hoch made the identification discussed above.

At the trial the following evidence was adduced of prior thefts involving defendant: Camille Rodrigues, owner of Star TV in Hayward, testified that defendant had been in his store on September 13, 1966 for some 40 minutes purportedly shopping for a stereo. Defendant then left. A few minutes subsequent a deputy sheriff entered and asked Rodrigues if he had sold defendant a television set. Rodrigues responded that he had not. Deputy Sheriff Chavarria testified that he observed defendant leave Star TV with the item, hurry down the sidewalk, television set in hand, enter a vehicle and drive off. Both witnesses made in-court identifications of defendant as the individual they had seen leave Star TV with the television set.

In testimony as to a second prior, Mr. Robert E. Lee, owner of Robert E. Lee Stereo and TV in Hayward, stated that defendant had come into his store on September 23, 1966, and discussed the purchase of a stereo. While Lee was elsewhere detained, defendant left. Again, a third person came in and asked Lee if he had sold defendant a stereo. Such third person had seen defendant hurrying down the street with one. Lee had not so sold a stereo and determined one to be missing. With respect to this incident Wendell Earl testified that he had observed defendant browse about the stereos, take one and hurry off down the street. He identified defendant in court as the man who took the stereo. Earl's testimony was corroborated by Gerald Baker, a Hayward deputy sheriff, who testified to also having seen defendant on the day and time of the incident hurrying down the street, stereo in arm. Baker also made an in-court identification of defendant.

In defense to all the above, defendant, testifying in his own behalf, stated that on the day of the alleged theft from Hoch's store and at the time thereof, he and a friend had been at defendant's brother's house helping the latter fix a car. Defendant stated that they had walked part of the way, having run out of gas shortly before arriving there. Defendant testified that he had stayed at his brother's for approximately 45 minutes and then returned to his car, whereupon he was met by the police. Defendant at all times adamantly denied having taken the television set from Hoch. Defendant's brother, Clarence 'Ted' Rodriguez, corroborated defendant's testimony, stating that defendant and a friend had been at his house helping him to fix a car and remained there for approximately 45 minutes.

On being cross-examined concerning the prior offenses defendant initially denied having taken the television from Rodrigues's store and the stereo from Lee's store. On continued questioning he admitted having taken these two items.

The identification

Defendant contends that Hoch's identification in front of his store on the day of the alleged theft and his in-court identification were constitutionally infirm because the identification was equivocal and ambivalent; because the police unfairly suggested defendant's identity to Hoch; because the judge acted as the People's advocate in questioning Hoch as to how he identified defendant; because no counsel was present nor were any admonitions given prior to Hoch's identification; and, finally, because the in-court use of photographs was prejudicially suggestive.

In considering these contentions we observe that objections were interposed to the identification process on the basis that it violated defendant's rights under the Third, Fourth, Fifth, Sixth and Fourteenth Amendments and the principles enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. These two cases hold, essentially, that the right to counsel attaches when a defendant is required to appear in a post-indictment pretrial lineup at which the accused is exhibited to identifying witness. We also observe that the trial court conducted a Voir dire hearing out of the presence of the jury in order to pass upon the fairness of the pretrial identification and the admissibility of the anticipated incourt identification. Finally, we note, preliminarily, that the thrust of defendant's contentions with respect to the identification made by Hoch in front of his store following defendant's apprehension is that it was impermissibly suggestive, that it was unfair, and that it was conducted without notifying him of his right to have counsel present or that counsel would be appointed if necessary.

Initially we must make a further observation in order to place defendant's contentions into proper focus. It has to do with the application of the Wade-Gilbert doctrine. That doctrine is applicable to a claim that the defendant was entitled to counsel at the pretrial identification. Where the claim is made that the pretrial confrontation was so unnecessarily suggestive and unfair as to be conducive to irreparably mistaken identification, then the recognized ground of attack is that the defendant was denied due process of law independent of any right to counsel claim. (Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)

A. The Wade-Gilbert Rules

We now turn to defendant's claim that the face-to-face pretrial identification made by Hoch in the absence of counsel was conducted in violation of his Sixth Amendment right. Defendant cites us to Wade and Gilbert in support of his contention. These cases, although dealing specifically with post-indictment pretrial lineups, have been interpreted to apply to formal preaccusation lineups as well. (People v. Fowler, 1 Cal.3d 335, 344, 82 Cal.Rptr. 363, 461 P.2d 643.) However, neither case purported to cover identification confrontation outside the formal lineup context. (See Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1283.)

In Fowler, where a formal lineup identification was involved, the California Supreme Court made it specifically clear that it was not deciding the extent to which the Wade-Gilbert rules are applicable to pretrial confrontations occurring outside the context of a formal lineup. (1 Cal.3d at p. 344, fn. 16, 82 Cal.Rptr. 363, 461 P.2d 643.) The court did observe, however, 'that the Principles informing rules governing Lineups are broadly applicable to all pretrial confrontations.' (App. 342--343, fn. 13, 82 Cal.Rptr. at p. 369, 461 P.2d at p. 467.) This analysis appears to find support in Stovall where, in discussing the Wade principles, the court pointed out any confrontation for the purpose of identification is a 'critical stage' in the proceedings requiring the presence of counsel. (Stovall v. Denno, supra, 388 U.S. 293, 298--299, 87 S.Ct. 1967, 18 L.Ed.2d 1199, see also United States v. Wade, supra, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149.) In Stovall the court had before it a nonlineup confrontation wherein a suspect was shown singly to a murder witness for purposes of...