People v. Williams

• Decision Date: 14 March 1977
• Docket Number: Cr. 2712
• Citation: 68 Cal.App.3d 36,137 Cal.Rptr. 70
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Thomas WILLIAMS, Defendant and Appellant.

Page 70

137 Cal.Rptr. 70

68 Cal.App.3d 36

The PEOPLE, Plaintiff and Respondent, v. John Thomas WILLIAMS, Defendant and Appellant.

Cr. 2712.

Court of Appeal, Fifth District, California.

March 14, 1977.

Geoffrey Rotwein, San Francisco, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert E. Venturi and J. Rodney Davis, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HOPPER, Associate Justice.

FACTS

At about 9:00 o'clock on the morning of January 2, 1976, Mrs. Alicia Murillo was walking down King Street in Bakersfield when a Negro male came up on her from behind and grabbed her purse out of her hands. In the purse, Mrs. Murillo carried her life savings which consisted of three thousand five hundred dollars, accumulated over the past five and a half years from working in the fields. With the exception of one one hundred dollar bill all of the money was in twenty dollar bills. In addition, there were three twenties, one five dollar bill and five one dollar bills, which were for everyday use. After taking the purse, the man crossed King Street and turned into an alley. Mrs. Murillo screamed and ran after the thief until it became apparent that pursuit was hopeless, at which point she called the police.

On that same morning, Jerry LeMaster and Dennis Houk were remodeling a house near the alley mentioned above. At about 9:00 o'clock they heard a woman screaming. About a minute and a half later they saw a man running down the alley. The man then cut through the yard in which LeMaster and Houk were working, passing within five feet of LeMaster. He was running with his arms held over his stomach. LeMaster saw him for a total of ten to fifteen seconds, Houk for a period of about five seconds. Less than five minutes later, they saw Mrs. Murillo running down the alley.

At about 1:00 that afternoon, defendant came to Bill and Garry's Used Cars in Bakersfield, accompanied by his wife and two men. He asked whether he could purchase a 1971 Thunderbird for $1,500 down. Garry Brown, a salesman at the lot, said that that might be possible. At this point, one of defendant's friends pointed out a Pontiac and suggested that defendant get it instead. Defendant asked if he could buy it for $1,000 down and Brown assented. Defendant got in the car and started it up, and then said he would buy it. He made no attempt to test drive the car. Brown testified that in the seven or eight years he had been selling cars only four or five people had agreed to buy cars without test driving them or checking under the hood. Defendant appeared nervous.

Brown, defendant, defendant's wife and one of defendant's friends went into the sales office to arrange the purchase. Brown, who had been warned earlier that day by the police to be on the lookout for the purse snatcher, told his uncle to call the police. Defendant's wife gave defendant some money out of her purse to pay for the car, which consisted entirely of twenty dollar bills. While defendant was counting the money, the police arrived.

By the time the police arrived, defendant had counted out sixty eight twenty dollar bills ($1,360). In his wife's purse the police found an additional 100 twenty dollar bills, one one hundred dollar bill, two five dollar bills, and four one dollar bills. Defendant was then arrested.

Both LeMaster and Houk identified appellant as the man they saw in lineups conducted after appellant's arrest. However, only Houk was permitted to testify as to his lineup identification. LeMaster was not permitted to testify as to his lineup identification because it was a post-complaint lineup in which the defendant was not provided with counsel and had not waived such right. LeMaster was permitted to identify the defendant in court after the trial judge had determined at a hearing that an in-court identification would not be tainted by the lineup. Houk also testified at trial that defendant was the man he had seen. Houk further testified that before attending the lineup he had been shown a photographic lineup containing defendant's picture, and that he had picked out a picture of a person other than defendant and tentatively identified him as the person he had seen.

The chronology of events taking place after defendant's arrest was as follows:

1. Friday, January 2, about 1:00 p.m.--defendant arrested.

2. Tuesday, January 6, about 6:00 p.m.--defendant identified by Houk in lineup.

3. Wednesday, January 7--arraignment of defendant and complaint filed against him.

4. Friday, January 9--defendant identified by LeMaster in lineup.

No counsel was provided to defendant at either lineup, nor was he advised of his right to counsel.

Robert P. Molina testified that defendant had worked for him from 11/10/75 to 12/3/75, at a wage of $3.10 per hour. Denise Perez, an eligibility worker for the welfare department, testified that defendant on December 30 applied for food stamps, and that he stated on his application that he was receiving unemployment.

The court also ruled that defendant if he testified could be impeached by a 1970 conviction for robbery, but that a 1968 conviction for grand theft was inadmissible. Defendant elected not to testify.

The defendant contends reversible error was committed by the trial court by:

1. Permitting Mr. LeMaster to identify the defendant in court.

2. Admission of the lineup identification and the courtroom identification by Mr. Houk.

3. Admitting evidence of the defendant's application for food stamps.

4. Ruling defendant's prior felony conviction admissible.

DISCUSSION

I. THE LE MASTER IN-COURT IDENTIFICATION.

Defendant argues that the in-court identification by Mr. LeMaster was tainted Per se by the improper lineup, citing the following language from Kirby v. Illinois (1972) 406 U.S. 682, 683--684, 92 S.Ct. 1877, 1879, 32 L.Ed.2d 41 '. . . Those cases (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, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178) further held that no 'incourt identifications' are admissible in evidence if their 'source' is a lineup conducted in violation of this constitutional standard. 'Only a Per se exclusionary rule as to such testimony can be an effective sanction,' the Court said, 'to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.''

That language only establishes that the testimony is inadmissible Per se if its 'source' is the improper lineup. Here, the trial court determined that the in-court identification was not tainted by the lineup.

II. THE HOUK LINEUP.

Defendant argues that the court committed reversible error by admitting into evidence the fact that the witness, Mr. Houk, identified the defendant at a lineup, and by allowing Mr. Houk to identify the defendant in court. The People admit error, but contend that it was harmless beyond a reasonable doubt.

Defendant was not represented by counsel at the lineup nor did he waive such representation. Since the lineup took place before the arraignment, normally he would not be entitled to counsel at that time. (Kirby v. Illinois, supra, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 41; People v. Chojnacky (1973) 8 Cal.3d 759, 764--765, 106 Cal.Rptr. 106, 505 P.2d 530.)

However, defendant argues that the lineup took place before his arraignment solely because he had not been properly arraigned without unnecessary delay.

The California Supreme Court has pointed out that failure to promptly arraign a defendant is an unlawful practice and such police conduct will be subject to close scrutiny. (People v. Powell (1967) 67 Cal.2d 32, 61, 59 Cal.Rptr. 817, 429 P.2d 137.) However, in order to obtain reversal of a conviction on this ground, the defendant must show prejudice resulting from the delay. (People v. Combes (1961) 56 Cal.2d 135, 142, 14 Cal.Rptr. 4, 363 P.2d 4.)

We hold that it is prejudicial error to admit into evidence any identification of a defendant made at a post-arrest, pre-complaint lineup when All of the following conditions exist:

1. Defendant's counsel is not present and there has not been a waiver of counsel.

2. Law enforcement officers have failed to take the defendant before a magistrate without unnecessary delay.

3. The lineup takes place during the period of unnecessary delay.

Article I, section 14 of the California Constitution provides in part:

'A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court.'

Several statutes supplement this constitutional provision. ¹

Several courts have applied the statutes to their own particular facts as to when the 48-hour maximum has been reached. (See for example, In re Walker (1974) 10 Cal.3d 764, 112 Cal.Rptr. 177, 518 P.2d 1129; People v. Santos (1972) 26 Cal.App.3d 397, 102 Cal.Rptr. 678; People v. Vick (1970) 11 Cal.App.3d 1058, 90 Cal.Rptr. 236; People v. Lee (1970) 3 Cal.App.3d 514, 83 Cal.Rptr. 715; People v. Taylor (1967) 250 Cal.App.2d 367, 58 Cal.Rptr. 269, cert. den., 389 U.S. 995, 88 S.Ct. 500, 19 L.Ed.2d 493; People v. Ross (1965) 236 Cal.App.2d 364, 46 Cal.Rptr. 41.)

We need not concern ourselves with that issue in the instant case because the People concede the lineup took place after the 48-hour period. Furthermore, 48 hours is only an Outside limit and it does not mean that any delay is reasonable so long as the 48-hour maximum limitation period has not been reached. The record in this case does not show any reason whatsoever for not arraigning the defendant on Monday or Tuesday.

There is no authority to delay for the purpose of investigating the case. Subject to obvious health considerations ² the only permissible delay between the time of arrest...