Opinion
For Opinion on Hearing see, 92 Cal.Rptr. 6, 478 P.2d 942.
Opinion on pages 752 to 759 omitted
HEARING GRANTED
See 3 Cal.3d 853 for subsequent opinion.
[86 Cal.Rptr. 380]Thomas C. Lynch, Atty. Gen., by James T. McNally, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.
Ronald E. Moe, Dixon, for defendant and appellant.
REGAN, Associate Justice.
Defendant appeals from the judgment entered upon a jury verdict convicting him of robbery in the first degree (Pen.Code, § 211), with a finding by the jury that defendant was armed with a deadly weapon, namely an automatic pistol.
A codefendant, Larry Bailey, does not appeal.
It was established that at approximately 11 p. m., April 28, 1969, an armed robbery at the Hancock Service Station, located on Franklin Boulevard, Sacramento, was committed by two Negro men; one identified as Bailey, the other identified as Williams, the defendant herein.
The station attendant saw the two men leave on foot, walking south on Franklin Boulevard. He immediately indicated this fact to two passing police officers, who proceeded south on Franklin Boulevard, then west on 32nd Avenue where a chase of two fleeing men ensued on foot. Codefendant Bailey was intercepted shortly thereafter. Defendant Williams' car, found on 32nd Avenue within the path of the fleeing suspects and containing an automatic pistol, helped lead to the arrest of defendant at his home approximately 24 hours later.
In his defense, defendant testified that he spent the evening of April 28 roaming the Oak Park district, went to a party given by people he did not know, and returned from the party to find that his car, in which he had left his keys, was gone. He did not call the police in fear that a friend had in fact 'borrowed' the car.
When the prosecution rested, defendant made a motion under Penal Code, section 1118.1, which provides that at the close of the evidence on either side and before the case is submitted to the jury, the court on its own or on defendant's motion shall order the entry of a judgment of acquittal of one or more of the offenses charged if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.
There appear to be no cases dealing specifically with the construction of the sentence, '* * * the evidence * * * is insufficient to sustain aconviction [86 Cal.Rptr. 381]* * * on appeal.' (Pen.Code, § 1118.1.) In general, where there is substantial evidence to support the judgment of the trier of fact, the lower court judgment cannot be set aside for insufficiency of evidence. (People v. Bard (1968) 70 Cal.2d 3, 4-5, 73 Cal.Rptr. 547, 447 P.2d 939; People v. Hillery (1965) 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Newland (1940) 15 Cal.2d 678, 681, 104 P.2d 778.)
The trial court was not in error in denying defendant's motion for acquittal. There is substantial evidence, as outlined above, to establish that defendant participated in the robbery, fled, and deposited his weapon in his car in the course of his flight. The lack of fingerprints on the gun and the failure of the prosecution to introduce the clothes allegedly worn by the defendant on the night of the robbery do not compel a change in the course of the inference.
The victim was 'almost' positive in his identification of the defendant. However, an identification of a suspect by a victim need not be positive; lack of positiveness normally goes to the weight of the evidence, not to the admissibility of his testimony. (In re Corey (1964) 230 Cal.App.2d 813, 825-826, 41 Cal.Rptr. 379; see also People v. Jackson (1967) 253 Cal.App.2d 68, 73, 61 Cal.Rptr. 319.) The substantial certainty in the identification of the defendant herein adds greatly to the evidence against him.
Defendant contends the presence of testimony against codefendant Bailey prejudiced the jury against him. Although certain statements of a codefendant have been held to be prejudicial to a defendant and therefore grounds for reversal (People v. Aranda (1965) 63 Cal.2d 518, 531, 47 Cal.Rptr. 353, 407 P.2d 265), the codefendant in the present case did not testify against the defendant; in fact, both defendants denied knowing each other very well. Defendant herein could have moved for a separate trial if he felt his codefendant's presence would be prejudicial. (Pen.Code, § 1098; People v. McGautha (1969) 70 Cal.2d 770, 785, 76 Cal.Rptr. 434, 452 P.2d 650; People v. Aranda, supra, 63 Cal.2d at p. 527, 47 Cal.Rptr. 353, 407 P.2d 265.) Defendant did not do so.
Defendant contends that he was denied his constitutionally guaranteed right to counsel at his lineup in that his attorney was denied permission to be present when the witness made his decision on the identification of defendant.
On April 30, 1969, defendant stood in a lineup in the sheriff's office; defendant's attorney, Roy Williams, observed the lineup in the same viewing room with the witness Gomes. However, Attorney Williams was denied the opportunity to accompany the witness and the officer outside the booth where the witness' identification was made, despite Attorney Williams' request to go along. Testimony by attorney Williams indicates that the lineup itself was fairly constituted.
The United States Constitution requires that a defendant's attorney be present at any 'critical stage' of the legal proceedings. (See U. S. v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Fowler (1969) 1 Cal.3d 335, 342, 82 Cal.Rptr. 363, 461 P.2d 643.) The 'critical stage' is a time in the proceedings where a defendant's right to a fair trial would be substantially prejudiced if an attorney were not present, and where the presence of an attorney would avoid that prejudice. (See Stovall v. Denno (1967) 388 U.S. 293, 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1204.) In U. S. v. Wade, supra, the police lineup was deemed to be a 'critical stage' due to the fact that in-court identifications were aided by the 'degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.' (Emphasis added.) (U. S. v. Wade, supra, 388 U.S. at p. 228, 87 S.Ct. at p. 1933, 18 L.Ed.2d at p. 1158.) These inherent suggestions are such that it would be difficult for a defendant, on his own, to bring them to light at trial, especially since [86 Cal.Rptr. 382]the defendant's word as to the conduct of the lineup would be opposed to testimony of the officers of the law who were present at the lineup. Therefore, the defendant would be denied his right to effectively cross-examine the witness against him; his identity established, the defendant at trial was helpless. (See People v. Caruso (1968) 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336.)
In order to extend the Wade ruling to include the moment that the identification itself is made, it must be shown that the defendant's right to a fair trial would be substantially prejudiced if an attorney were not present, and that the presence of an attorney would avoid such prejudice. Only then would the moment of identification become a 'critical stage' in the proceedings and require the presence of an attorney.
The robbery victim made an in-court identification of both defendant Williams and codefendant Bailey as the perpetrators of the robbery. Prior to trial the victim identified defendant by photograph and at the police lineup, the lineup itself being fairly constituted and conducted in the presence of defendant's attorney. To this point we find no error in the police procedure followed. Although defendant's attorney was not present at the post-lineup discussion between the witness and the police, defendant had a full hearing at trial, through effective cross-examination, on this discussion wherein the witness frankly admitted his reluctance in identifying defendant. There has thus in this case been no denial of defendant's Sixth Amendment rights. Assuming arguendo that there could be circumstances when an accused's counsel's presence at the post-lineup discussion between the witness and the police might be held to be a 'critical stage,' and the absence of counsel to be error, it is clear beyond a reasonable doubt that no error contributed to the verdict in this case. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710.)
The judgment contains a finding that 'defendant was charged and admitted being, or was found to have been armed with a deadly weapon at the time of commission of the offense, or a concealed deadly weapon at the time of his arrest within the meaning of Penal Code Sections 969c and 3024.' People v. Floyd (1969) 71 A.C. 918, 80 Cal.Rptr. 22, 457 P.2d 862, holds that these sections are inapplicable to first degree robbery convictions.
The crime in the case before us was committed prior to Floyd. Subsequent to Floyd, the California Legislature adopted section 12022.5 of the Penal Code (Stats.1969, ch. 954, p. 1900, § 1, effective Nov. 10, 1969), which states that when a person uses a firearm in the commission or attempted commission of a robbery, then in addition to the punishment prescribed for the crime, he shall be punished by imprisonment in the state prison for not less than five years; this section 'shall apply even in those cases where the use of a weapon is an element of the offense.' The provisions of section 12022.5 were not made retroactive and thus have no application here.
The judgment is modified in accordance with the views expressed in People v. Floyd, supra, to provide that at the time of the commission of the offense sections 3024 and 12022 of the Penal Code were inapplicable but defendant was armed within the meaning of section 1203 of the Penal Code. (See People v. Morrow (1969) 276 A.C.A. 848, 856, 81 Cal.Rptr. 201.)
In all other respects the judgment is affirmed.
PIERCE, P. J., and BRAY, J. Assigned, concur.