*1 No. 21740. Oct. [Crim. 1981.] PEOPLE, Respondent,
THE Plaintiff BUSTAMANTE, Defendant and Appellant. RUDOLFO *3 Counsel *4 Suzuki, Court,
Paul T. under appointment by Supreme Defen- dant and Appellant. Jenner,
James R. Gaskill, (Alameda), Public Defender B. Assistant Jay Defender, Public Denvir, Michael Samuel Ogul, Quin State Public De- fender, Jean R. Weinheimer, and Sternberg Gail R. State Deputy Defenders, Public as Amici Curiae on behalf of Defendant and Appellant.
George General, Deukmejian, Attorney Philibosian, Robert H. Chief General, Assistant Moore, Attorney S. Clark Assistant Gener- Attorney al, Carol Pollack, Wendelin Marc E. Turchin and Sharlene A. Honnaka, Deputy General, for Attorneys Plaintiff and Respondent. Herb Jackson, District (Sacramento), Attorney M. George Hendrickson, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
Opinion
TOBRINER, J.
(1967)
United
States v. Wade
lineups.1 a Califor- Constitution court, the California whether under question extends preindictment to counsel defendant has a nia lineups. we took in to the position we should adhere
We have concluded lineups— preindictment to counsel encompasses Fowler—that the right As we shall ex- on the California Constitution. and we rest that position arose from counsel at a of the plain, judicial recognition unreliability eyewitness proverbial appreciation or deliberate inadvertent improper, and of the dangers strangers, testimo- influence identification will irradicably at a suggestion observe counsel, irregulari- could lineup, if ny. present Defense of the identi- ties, for cross-examination detect suggestion, prepare and misidenti- invalid suggestion danger witnesses. Because fying both to preindictment and applies fication characterizes equally to counsel that defendant’s right we conclude lineups, postindictment lineups. not be limited to postindictment should a conviction case, Bustamante appeals In the defendant *5 that he was denied crimes. He asserts and various other robbery to the rob- at which a witness at preindictment lineup to counsel in Fowler and established the principles identified him. bery Applying re- conviction and robbery we in this reverse opinion, reaffirmed testimony if the witness’ the trial court to determine mand the matter to identification. untainted independent ground rests count, we affirm the the robbery affects only Since that identification conviction other counts. on all
I. Statement Facts he returned to March testified that on Grosskopf
Charles men, the apart- inside hispanic, find two a black and a apartment his The his wallet. him while the took hispanic ment. The black man held none, said that he had Grosskopf when money; demanded more hispanic hearing, Grosskopf At the Grosskopf. preliminary stabbed hispanic him. He repeated as the who stabbed person identified defendant at trial. Kirby—we language of Wade and corresponds it to the convenience—because 1For “postin distinguishing “preindictment” and between generally describe as shall right of a in terms of the lineups. Although describe our decision dictment” we felony holding equally applies lineup, our “preindictment” at a defendant prosecutions. misdemeanor prosecutions by information and to initiated at Joseph Zimmerman also testified trial that he observed a black a hispanic building and enter the and Five to apartment go upstairs. minutes eight Grosskopf later he encountered a knife bleeding filed, wound. After but defendant was arrested before were charges Zimmerman identified him at a defendant re- lineup. had Although counsel, none quested was at the provided admissibility Zimmerman’s trial defendant is the is- testimony identifying principal sue on this appeal. 21, 1979,
Matthew Ozaki testified that on March someone broke into wallet, his two apartment and took and other items. jacket, guns, Later that was arrested for under day being defendant the influence of A narcotics. search of and subsequent defendant’s person lodging knives, turned a gun, up personal property belonging Grosskopf Ozaki, and quantities of cocaine concentrated cannabis. trial,
Prior to defendant moved to Zimmerman’s identifica- challenge on ground tion that defendant had been refused his to counsel. The trial court denied the motion. Defendant renewed his efforts to ex- addition, clude the identification he trial. called as witnesses two women who seen the had black and hispanic enter and leave the building; both identified defendant but said they were not certain of their identification. convicted jury I, defendant of count robbery Grosskopf,
found (see as factors that aggravating he inflicted great bodily injury Code, 12022.7), (see Pen. that the victim was years or over age § *6 Code, 1203.09), Pen. and that defendant used a personally deadly § (see Code, 12022, (b)). weapon Pen. subd. In connection the with § matter, (count Ozaki II) defendant was acquitted of burglary and theft (count a III), (count of gun but convicted of receiving stolen property IV). Defendant was also convicted of ex-felon in being possession of (count V), VI), a firearm (count of possession possession cocaine of (count VII). concentrated cannabis
The trial court sentenced defendant to the term of five upper years for a robbery, with for three-year enhancement the infliction of great and a bodily injury one-year enhancement for the of a use deadly weap- on. It further consecutive of imposed sentences one-third of the middle IV, VI, V, term on counts and a concurrent term for count VII. 94 re- contention His principal the from appeals judgment.
Defendant in court erred that the urges He to the conviction. robbery lates only wit- because that of Zimmerman identification testimony the admitting the right he was denied in lineup him at a first identified ness counsel. Constitution, I, the article section
II. Under California of counsel at a preindictment to assistance right has the defendant lineup. judi- history perspective from the
We first examine this case Wade, States v. of United the date of the rendition cial rulings Wade, Su- States United present. to the 388 U.S. admissibility limits as to the developed Court constitutional preme had first identified in that case The witnesses testimony. identification had been after counsel lineup staged days the defendant at an FBI at, of, defendant; notified or was not counsel appointed a post- to counsel at was entitled ruled that defendant The court the identification that consequently indictment lineup, could show that the prosecution admitted unless should not have been source, untainted independent from an the testimony originated improper lineup.2 under to counsel the defendant’s defining cases
Relying upon
(Escobedo
378 U.S.
v. Illinois
Amendment
[12
Sixth
Arizona
and Miranda v.
84 S.Ct.
L.Ed.2d
1758]
the court
974]),
pro-
10 A.L.R.3d
86 S.Ct.
defendant enjoys
nounced a general principle:
L.Ed.2d,
(P. 227
in the prosecution.
“critical stage”
every
the danger
two problems
particular:
It then focused on
p. 1157].)
unconscious,
the witness’
will influence
or
intentional
suggestion,
and mode
the manner
identification;
reconstructing
difficulty
and the
trial,
be unable
counsel would
so that defense
led
problems
These
subject.
the witness on that
to cross-examine
doubt
that for Wade
can be little
that “there
court to conclude
at which
prosecution
stage
was a critical
post-indictment
*7
1178,
case,
(1967)
companion
L.Ed.2d
2In a
Gilbert v.
643], concluded that the rules established Wade and Gilbert gov- Sullivan, erned Justice preindictment lineups. writing for the majority, noted that or presence absence of those conditions attendant “[t]he which lineups induced the court to term such high proceedings ‘a. critical stage of the at prosecution’ which the counsel attaches ... not certainly dependent upon occurrence or nonoccurrence of proceedings defendant formally binding over for trial. A occurs to the prior point with question may be the same risks fraught of suggestion as one after that occurring and point, may result in the same (P. (Fns. far-reaching consequences for the defendant.” omitted.)3
Although lower federal courts also interpreted Wade and Gilbert to (see (10th apply preindictment Wilson v. lineups Gaffney 1972) Cir. 142, 144; (D.C. 454 F.2d 1970) United States v. Greene Cir. F.2d 429 193, 196; (9th 1970) United States v. Cir. 427 F.2d Phillips 1037), Court, when the issue reached the United States Supreme that court disagreed. In Kirby v. Illinois 406 682 U.S. L.Ed.2d [32 411, 92 S.Ct. 1877], opinion Stewart, of Justice plurality noting that Wade and Gilbert at required only a “critical of the stage criminal prosecution” L.Ed.2d, 32 (p. 414], p. citing Gilbert v. California, 1186]), held that this purpose “prosecution” does not commence until “the initiation of criminal adversary judicial proceedings—whether by way of formal charge, indictment, information, preliminary hearing, or arraignment.”
Two California Appeal Court of decisions assumed over- that turned Fowler that defendants consequently longer were no entitled suggested 3The regulations Wade court had that which eliminated the risks of abuse suggestion unintentional regarding would remove basis for such con stage frontations as prosecution (388 p. a “critical” U.S. L.Ed.2d at 1164]); Attorney argued thus police regulations General in Fowler that the in ef rejected contention, fect at the lineup accomplished Fowler that purpose. We noting regulations that counsel could whether such protective observe were followed reconstructing could aid in procedure suggestive to detect unintentional (P. Cal.3d.) ness techniques. or inadvertent use of unfair Accordingly, 349 of we held testimony against the identification pros Fowler could not be admitted unless the prove ecution could independent that it derived from an and untainted source.
96 (1972) 28 lineup.
to counsel at a v. Faulkner preindictment (People 384, O'Roy (1972) 29 v. Cal.App.3d Cal.Rptr. 625]; People 390 [104 656, When that issue reached Cal.App.3d Cal.Rptr. 717].) 662 [105 court, however, failed to reach a majority People this we consensus. 106, (1973) 530], 8 505 P.2d Cal.Rptr. v. Cal.3d 759 Chojnacky [106 Burke, Chief and Justice joined Wright of Justice Justice opinion McComb, that Fowler was no after deci longer controlling asserted (P. 764.) in Justice Kirby. sion of the United States Court Supreme Mosk, in lineup Chojnacky maintained that because concurring, in its must validity took before the of the decision place filing Kirby, in as Fowler. He applied still be under the Wade-Gilbert rules judged concluded, however, lineup of counsel at the satisfied that the presence even counsel was not informed though the Wade-Gilbert rules (P. I the dissenting opin man in the was his client. joined Sullivan, that Fowler did control ion of Justice which stated not only to counsel the of his identity refusal to disclose police but also that the 769-770.) (Pp. the identification inadmissible. client rendered issue, the Courts of in Appeal failed to settle the Since Chojnacky had no right to assume that a defendant cases continued subsequent (1980) 105 v. lineup. Kilpatrick counsel at a preindictment (People (1977) v. Williams 401, 349]; People 411 Cal.Rptr. Cal.App.3d [164 (1973) 36, v. Strawder Cal.Rptr. 70];4 People 42 68 Cal.App.3d [137 but v. Johnson 901]; see Cal.Rptr. 378 Cal.App.3d [108 ar- which assumed 661], Cal.App.3d [149 at a preindict- denied counsel erroneously that defendant was guendo Roth, Justice Presiding nonprejudicial.) held the error lineup, ment but a more exten- Johnson, enjoyed that a defendant dissenting argued than the limited the California Constitution under right sive to counsel 699), at but (see 85 Cal.App.3d by Kirby federal circumscribed right today ap- we Thus proposition. considered no majority opinion under at a to counsel right a defendant’s question proach first impression.5 as a question Constitution the California right no to counsel ordinarily had Kirby a defendant that under 4Williams stated arraignment was unrea exception when the lineup, but established preindictment delayed. sonably limiting a defendant’s decisions follow majority of state court 5A independent state alternative of consider the do not Most decisions counsel at Kirby, do, follow resolve to and nevertheless rights; among few which constitutional — 459, 463; R.I. — State v. Delahunt 1972) Boyd (Me. 294 A.2d are State N.W.2d Taylor (1973) 60 Wis.2d 1265]; 882]. State v. A.2d grant to coun grounds to state constitutional have relied on Two state courts 641; People v. (Alaska 1977) 558 P.2d (Blue lineups. v. State preindictment sel
97 In construing Constitution, the Bill of in Rights the California we give respectful consideration to of the United States Su decisions preme Court federal constitutional construing guarantees, but we are not bound to follow (1975) those decisions. v. (People Longwill 14 943, 951, Cal.3d 297, fn. 4 Cal.Rptr. 538 P.2d As 753].) we stated [123 in (1980) People 334, 762, v. Chavez 26 Cal.3d 352 Cal.Rptr. 605 [161 P.2d as the United States Court bears the Supreme ulti 401]: “[J]ust mate judicial responsibility law, for matters of federal this determining court bears the ultimate judicial for of responsibility resolving questions law, state including proper interpretation provisions state Constitution. this difficult and fulfilling grave responsi [Citations.] we cannot bility, our task to properly relegate judicial guardians Constitution, federal but instead must personal our recognize obli gation to exercise independent legal judgment ascertaining the meaning application state constitutional provisions.” A blind following of Supreme precedent Court would frustrate our ability protect rights Californians enjoyed by and to maintain consis- (See tency California Mosk, Courts, law. The State in American (Schwartz Law: Third 213, 1976) 217-220.) edit. Century If the United States Supreme Court hands down a decision which limits rights established by earlier precedent in a manner inconsistent with the spirit of the earlier opinion, it may become incumbent this court to em- ploy California Constitution to maintain consistent principles (See those protecting rights. (1976) v. 101, Disbrow 16 Cal.3d Cal.Rptr. 272].) P.2d “Respect our [127 Constitution as ‘a document of independent force’ forbids us to [citation omitted] abandon settled its applications terms time every changes are an- nounced in the interpretation of the federal charter.” v. (People Pettingill 21 Cal.3d 578 P.2d [145 108].) Wade, United States
Consequently,
though
even
a right
defendants
grants
218 held that
the federal Constitution
as
issue of first impres
we
free to determine
counsel at
are
lineups,
a similar right,
Constitution grants
sion whether the California
under
have
If we determine that defendants
Pennsylvania
27].)
Supreme
Judicial of the to counsel recognition As identification. unreliability response eyewitness the recognized stated, prover- is strangers “The identification a scholar then leading Vanzetti (Frankfurter, The Case of Sacco and untrustworthy.” bially Frank, commentator, concluded Jerome Judge Another the accused constitutes identification of the erroneous “Perhaps Frank, (Frank & Not convictions.” of the known major wrongful cause 61.)6 (1957) p. Guilty as soon lineup, staged conducted properly of these light dangers, whose crime, persons a number of containing the
as feasible after invaluable defendant, po- becomes an the resembles appearance general That identification. reliability the to enhance lice technique a “critical stage however, makes clearly procedure, Wade, States v. supra, of United the language within prosecution” witness has 1149, for when a 1162-1163], 218, 237 L.Ed.2d U.S. change his is unlikely he lineup, at identification made positive well be ‘irre- may made it is decision identification any mind. “[G]nce 485, 461, italics Anderson, 205 N.W.2d supra, v. (People parable.’” Wade, omitted; States see United (1968) 390 U.S. v. United States cf. Simmons 1158];
L.Ed.2d 1247, 1253, (photographic 88 S.Ct. 967] 383-384 [19 trial, has when defendant Identification lineup).) if earlier witness, be unshakable cross-examine who may committed doubts and the witnesses’ removed has identification in question. the criminal is that defendant to the proposition him Court, People v. Anderson appendix to in an Michigan Supreme 6The factors length psychological 479-494], reviewed N.W.2d Mich. 155 [205 unreliable, leading ar studies and cited the eyewitness render which Michigan in which cases in three reviewed the facts subject. The court also on ticles defendants. of innocent the conviction led to mistaken identification Wade, As “A Justice Brennan stated factor major contributing incidence of high miscarriage of mistaken identification justice has been the degree of inherent in the manner in suggestion prosecution presents witnesses for suspect pretrial identification. A commentator has observed that influence improper sugges- ‘[t]he tion witnesses accounts more identifying probably for miscarriages of justice any than other it single factor—perhaps responsible Wall, more such errors than all other factors combined.’ Eye-Witness *11 Identification in L.Ed.2d, Criminal Cases 26.” 228-229 (Pp. Sobel, (1972) see p. 1158]; 3.01.) Moreover, Identification Eyewitness § out, as Wade and pointed other cases it is extremely repro- difficult to duce the procedure at trial with sufficient precision to detect improper suggestion.
We therefore conclude that a pretrial is a critical lineup stage in the case, prosecution of a criminal and that the fairness of that ensuring is lineup crucial to the of innocent protection persons accused of crime. The more difficult question is whether the of requirement the presence of counsel will alleviate significantly of mistaken danger identifica- tion.
Although counsel plays only limited role at the his lineup itselF presence still serve to may protect of the rights defendant. A re quirement for counsel lineups encourages the police adopt regula tions (see Pulaski, to ensure the fairness of the Neil v. Biggers: Court Supreme Dismantles the Wade Due Process Pro Trilogy’s (1974) 1097, tection 1101) 26 Stan.L.Rev. and to follow those regula (see Fowler, tions v. People 335, 348). supra, Cal.3d The attorney detect may inadvertent actions not suggestive within the of scope pro tective regulations. Finally, counsel’s observations will help him to prepare cross-examination the identifying witness and for argu State, (See ment 636, 641; at trial. Read, Blue v. 558 P.2d supra, Lawyers at Constitutional or Lineups: Necessity Avoidable Extrava (1969) 339, gance? 17 UCLA L.Rev. 853, explained 7As Justice People Mosk in v. Williams 3 Cal.3d 860 [92 6, (dis. P.2d opn.), rearrange personnel, counsel “cannot cross- 942] examine, ask lineup say anything those in the any particular clothing or to don or to any specific gestures. make may Counsel not insist law enforcement officials hear his objection procedures employed, compel adjust nor he them to their to his most,
views of what is appropriate. merely At defense is counsel [Citation [¶] omitted.] silently at the lineup to purposes observe and to later recall his observations for of cross-examination or to capacity act of a But witness. the latter raises the circumstances, complex trial upon by frowned profession, lawyer ethics of the serving in the additional role a testimonial witness.” have urged and commentators We that some recognize jurists even the best way, or only of counsel is not presence necessarily (See United identification. defendant from mistaken protect way, Wade, 1149, 218, supra, States v. 1164] Fortas, id., J.); J.); fn. “*” Brennan, (opn. (opn. Fowler, Sobel, 335, 348-349; see generally Eye-Wit 1 Cal.3d supra, standards for conducting proposing ness Identification § cit., 1101-1102; Pulaski, 26 Stan.L.Rev. lineup; supra, fair op. a form Read, L.Rev. 379-393 (suggesting 17 UCLA cit. op. regulation).) not, however, whether can pro-
We need decide today regulations the defendant’s rights which are so effective mulgated protecting We have compelled.8 is no constitutionally presence longer in Califor- stage a critical indicated that the pretrial previously of counsel can contribute criminal Since the prosecutions. presence nia *12 misidentification, defen- his client from to the of significantly protection critical to him at that entitled have counsel assist present dant is to that, to assis- right hold a California defendant’s We therefore juncture. at a right pretrial tance counsel includes the to counsel of We defendant’s to counsel should question right turn to the whether earlier, limited, in As we noted Kirby, postindictment lineups. be as did not that a opinion deny preindictment lineup the in plurality Kirby of criminal result in in- be critical to the defense a case may may accused; instead, held, an innocent it that tractable misidentification of the “prosecution” defendant has no to counsel until commences right with the of formal filing charges. view,
We that the think this a unrealistic and note commenta- wholly the limitation of tors have condemned generally Kirby's cit., (See Pulaski, 1102 and fn. counsel. Stan.L.Rev. op. At the of Dorado 62 Cal.2d least from rendition regulations, any, gov police the if does not indicate appeal 8The record on case, the description procedures of provide in but does lineup erned the the defendant, including six to the blacks hispanics, six employed. police displayed purpose. The re witnesses, supplied on cards for the view, identifications who marked their participants. the front and side lineup photographs, consists of color cord of the available, but were not of by were also (Presumably the witnesses the cards marked record, persons the evidence.) no other than fered into We have police, or the lineup by suspects, anything was said at the lineup, whether witnesses. we recognized 398 P.2d have 361], defendant before may the assistance counsel formal require charges Indeed, have been filed. to limit the to counsel at a post- as indictment would matter “The practical nullify right. defendant who from erroneous identification is protection most needs Yet, one who is or implicated solely eyewitness testimony. primarily by evidence, because of this lack an identification of the noneyewitness defendant a lineup in or would be formal showup necessary justify or the crucial neces- charges arraignment. confrontation Consequently, will be held before the initiation of formal sarily judicial proceedings when the defendant can of counsel. Thus removes the deprived protective effects of counsel’s when the presence danger precisely an innocent defendant a mistaken convicting greatest. Furthermore, after defeat Kirby, policy may the aims Wade and case any by charges Gilbert formal simply delaying holding (Note the absence of defense counsel.” 969, 996, omitted.) Stan.L.Rev. fns.
The Attorney General argues that requiring with- lineups, limitation, out the Kirby will hamper legitimate police investigation. officers, out, he points would be required to advise of his defendant counsel, right to counsel, determine whether he wants and arrange for counsel if defendant is indigent. Further delay counsel, ensue if re- tained by defendant or secured cannot police, come promptly *13 to the site of the If the lineup. right to counsel at a lineup is limited to postindictment lineups, defendant will represented be generally by record, of counsel which make for the arranging presence coun- sel the lineup an easier task.
Although extending right counsel to will preindictment lineups thus impose an additional burden upon police, may delay staging the lineup, these do consequences appear not substantial enough justify defendant this denying protective right. The burden of securing counsel is the same as exactly that which police departments must if assume a they wish defendant who question invokes his right Arizona, to counsel under 436; Miranda v. it is a re- supra, quirement all governed California lineups during years five aware, between Wade and so far as we are Kirby—without, significant- ly police impeding investigation. involved delay securing will be a matter of hours at If conditions generally require most. imme- diate identification without even minimal or if be delay, counsel cannot
102 time, within a present exigent reasonable such circumstances will justify proceeding without counsel.9 v.
We conclude that we should adhere to the views stated
People
643],
P.2d
We hold
Fowler
dure upon as to the individual except that our holding prospective often declared (see the court is being adjudicated defendant whose appeal P.2d 67, 99, fn. 18 22 Cal.3d Cook out, we have points defender cited). public there As the and cases 130] an earlier we have overruled when only that doctrine applied hitherto case, upholding our decision of this court. In the decision pre any prior with does not conflict preindictment to counsel at failed court Nevertheless, Chojnacky because cedent this court. to decide that compelled were of Appeal the Courts majority, to reach court; extending against decided they from this without guidance issue police, prosecutors, lineups; preindictment to counsel to We believe these decisions. extensive reliance courts have placed similar cases in Cook underlying prospectivity the rationale *14 exception the with Accordingly, situation. in the applies present to lineups only should apply in this opinion the holding appeal, present opinion. of this finality of held after the date exclusion the require would our holding appeal, In the present testimony Zimmerman unless of testimony the identification of State, custody “is entitled suspect P.2d supra, 558 in Blue v. 9As stated exist so exigent circumstances lineup unless pre-indictment present at a to have counsel purposeful prompt unduly with a interfere would providing counsel that investigation.” the by improper lineup. rests from and untainted independent on basis Wade, (See 240-242 States v. United [18 finding per- no sufficient The trial court rendered 1164-1166].) the basis. The General testimony Attorney mit admission of on this however, is excluded the testimony that even if Zimmerman’s argues, the evidence conviction should be on the basis of other robbery upheld against defendant.10 testimony conviction finds in the identification robbery support the tentative identifications the two women called as Grosskopf, by witnesses,
defense and the s discovery of wallet in defen- Grosskopf however, Zimmerman, room. dant’s was the testimony strongest evidence, item single prosecution picked since Zimmerman defendant out arrest, of a lineup after the defendant’s while immediately Gross- did kopf not defendant until the identify when preliminary hearing defendant was not with persons similar arrayed appearance.11 absence of Zimmerman’s we think it testimony reasonably probable would jury not have convicted defendant on I of count information.
When the of evidence turns on an admissibility issue of fact—an issue unresolved by the trial court because its significance was estab lished aby subsequent appellate opinion—the appellate court need not reverse the conviction but can outright, remand the cause for resolution (See the factual issue. v. People Vanbuskirk 61 Cal.App.3d 395, 405 Cal.Rptr. 30]; Ingram 87 Cal.App.3d 832, 840-841 cited.) and cases there In the 239] setting, admissibility of Zimmerman’s on testimony depends whether it source, derives from an independent untainted the coun selless lineup—a court, factual issue which the lower on relying Kirby, failed to resolve. Accordingly, judgment defendant against on count I of the information should be reversed and remanded the trial court to determine that If issue. it decides in favor of defendant and excludes the testimony, trial; defendant would be entitled to a new if it decides in favor of the People, court should reinstate judgment previously rendered. 10It is clear that the admission prejudicial of Zimmerman’s is not as IV, V, VI, counts and VII of the information. 11The record indicates Grosskopf that Zimmerman have told of Zimmerman’s defendant; so, identification of defendant Grosskopf before identified if that fact would *15 Grosskopfs undercut independent support as an for
conviction.
104 addressed the Court of fully by
Defendant’s other contentions were pre- We that court’s resolution of the issues there with Appeal. agree (See sented, and therefore those contentions as without merit. reject 99, 447, (1977) Cal.Rptr. 19 Cal.3d James People [137 1135].) P.2d reversed,
The count I is and the (robbery) with judgment respect in accord with the views ex- proceedings cause remanded for further IV stolen in this as count pressed opinion. judgment (receiving ex-felon), VI (possession (posses- count V count gun by property), cannabis) cocaine), VII of concentrated is (possession sion of and count affirmed.12 * J., Wiener, J., J., Newman, concurred.
Mosk, I must dissent BIRD, in the of the court but judgment C. J. I concur It dictum opinion. suggested two in the is assertions majority this be one. From conclu- counsel’s role at should lineups passive constitutional- sion, that counsel might on majority go suggest ante, at governing lineups. (Maj. opn., ly replaced proper regulations 99-100.) pp. vital to counsel’s preparation counsel at a presence of ante, at opn., trial. of witnesses at (Maj.
for the cross-examination 328, 99; 1 Cal.3d 348-349 v. Fowler v. Wade P.2d States 643]; United recognized This court has 1926].) 87 S.Ct. pres- for the are not an substitute adequate that regulations the constitutional rights protect ence of counsel. cannot Regulations the effective assistance cross-examination meaningful an accused to of an observer presence that the have also indicated counsel.1 Studies Act, imposed for sub Sentencing a consecutive sentence the Determinate 12Under Code, (Pen. imprisonment. term of of the middle is fixed one-third ordinate term reversed, then becomes term is it 1170.1.) underlying principal If conviction § compute a new conviction next most serious necessary court to select the for the trial princi for the Thus, a conviction appellate court reverses whenever an principal term. to make the term, cause as needed jurisdiction over the entire pal court retains the trial case, ju retains the trial court In the necessary in the sentence. modifications VII, I, modify IV, V, VI, as over count and can as well risdiction over counts such action. requires I disposition of count counts if the ultimate sentence as to these * Chairperson of the Judicial Council. Assigned by the Fowler, 348-349, this court discussed the con pages Cal.3d at supra, 1 People v. 1In photographs regulated that included still infirmity highly aof stitutional
105 (Levine at an procedure can reduce unintentional bias. & The Tapp, Criminal Psychology The Gap Identification: (1973) 1079, 1114, 1125, Wade to 121 U.Pa.L.Rev. and studies 183.) cited at fn.
The majority opinion contains unfortunate that implication need for counsel be if adopt- obviated are might regulations view, ante, 99.) ed. at (Maj. opn., p. my requirement that counsel be present and the need to set down are not exclu- regulations mutually sive.
Legal scholars have the crucial value repeatedly recognized regula tions governing lineups importance of the presence of counsel. a strictly applied against suggestive procedures] “[E]ven [standard would not be an adequate substitute for in counsel confrontations held before the initiation of ‘adversary judicial proceedings.’ process Due accomplish cannot (Comment, same that goals counsel can.” Right Counsel: Attachment Criminal Judicial Proceedings'? Before 810, 831; 47 Fordham L.Rev. see also Levine & cit. Tapp, op. 121 supra, U.Pa.L.Rev. 1125: “It is not that the counsel would, should be however, abandoned.... It be most unfortunate if the presence of counsel produced a false sense of which inhibited security procedural reform.”) additional
The right to the presence of counsel at a is not an ill-consi- dered measure which be with dispensed if are regulations adopted. The requirement be counsel serves constitutional interests. to the effective assistance of counsel Videotapes involved. and regulations cannot be substituted for such a basic constitutional right.
The suggestion that counsel may be rule and camera replaced by grows out of the ill-conceived majority’s notion counsel is merely passive observer at This court lineups. has never enunciated a role. such Fowler, v. (People Cal.3d fn. Counsel cannot client, and, therefore, denied his unreasonably access to own should (Cf. most cases be to see his client to a Peo permitted prior 8 Cal.3d ple Chojnacky Sullivan, Further,
P.2d J.].) can opn. valuable give 530] [dis. regula lineup: the basis of the cold opportunity for cross-examination on “[Counsel’s] ” (Id., shooting provided tions to him could amount to little more than dark .... p. 349.) *17 lineup advice to an anxious client on how to conduct himself the during (Katz Carter, so as to its & Cal. Criminal Law Practice ensure fairness. Series, 9; Tapp, op. (1978) Levine & p. Identification Eyewitnesses cit. U.Pa.L.Rev.
Further, so that changes counsel should be free to suggest also presence provides opportunity fair. The of counsel at the deal of time has great to meet and interview before a eyewitnesses identifications and their in-court between their elapsed pretrial identifications. A do not a counsel make. videotape pas-
Printed rules and a camera at a If this an effective counsel necessarily sive counsel is not are fair and by eyewitnesses wants identifications court to ensure it the of counsel who should not just, discourage participation able to ensure that are used. proper procedures J.,*
Staniforth, concurred. the California RICHARDSON, dissent. Relying I respectfully J. or facing Constitution, suspects preindictment holds that the majority or ap- to the selection are entitled identification lineups prearraignment majority thereby counsel. The and assistance pointment, presence the requirements of counsel beyond extends unnecessarily Supreme States the United interpreted by federal Constitution as 411, 92 v. Illinois (1972) 406 U.S. (See Kirby Court. confining basis Kirby view, affords sound 1877].) my S.Ct. has been the defendant which occur to lineups to counsel after awith crime. charged formally plu Stewart’s of Justice reasoning the forceful majority ignores carefully explains significance
rality opinion “The initi to counsel: context of right in the charges of formal filing It is mere formalism. is far from a criminal proceedings ation of judicial For criminal justice. of adversary whole system of our starting point prosecute, itself to committed has that the government it is then only defendant and positions government the adverse then that only faced with finds himself that a defendant It is then have solidified. the intrica immersed in society, forces of prosecutorial organized point, It is this criminal law. and procedural of substantive [¶] cies * Council. of the Judicial Chairperson Assigned by the therefore, marks commencement of the ‘criminal prosecutions’ to which alone the explicit the Sixth guarantees Amendment are ap plicable. In this case we are asked import into a [¶] [Citations.] routine police an absolute investigation constitutional histori guarantee cally applicable after the onset of rationally only *18 formal prosecutor ial proceedings. We decline to do Less so. than a after Wade year and decided, Gilbert were the Court the rule of explained those decisions as follows: ‘The rationale of those cases was that accused is entitled to counsel at any “critical of the stage and that a prosecution,” postindict ment (Italics is lineup such a “critical stage.”’ supplied.) [Citation.] We decline to from depart that rationale a today by imposing se ex per clusionary rule upon testimony concerning an identification that took place before long the commencement of prosecution any whatever.” (Pp. L.Ed.2d, 689-690 pp. 417-418], omitted.) fn. [34 contest, not People represent, defendant does that the Kirby Alabama, rule has Arizona, been the 37 states: adopted by following Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Georgia, Illinois, Indiana, Kansas, Iowa, Louisiana, Maine, Kentucky, Maryland, Minnesota, Missouri, Nebraska, Montana, Nevada, Mississippi, New Mexico, Oklahoma, Jersey, Carolina, Ohio, Island, New North Rhode Carolina, Dakota, Texas, Utah, South South Virginia, Washington, West Virginia, and Wisconsin. Of those states the examining question, four Thus, have only not the rule. apparently accepted statement opinion that “A of majority majority state court decisions follow (ante, 5) Kirby ...” fn. is a p. considerable understatement. Nonetheless, A not a investigation criminal criminal prosecution. rejecting the decision in holds Kirby, majority that prandictment lineup is a “critical of criminal stage” proceedings, by reason identification of “unreliability eyewitness strangers” the “dangers inadvertent improper, or deliberate at will ir- suggestion lineup (Ante, radicably influence identification Such testimony.” p. factors, however, do not warrant our from departure Unreliable Kirby. Moreover, identifications can occur or not counsel is present. whether abuse any of identification procedures, including improperly suggestive lineups, reviewed under due fully applicable process standards. (Kirby, pp. 418]; U.S. at 690-691 L.Ed.2d Stovall v. [34 Denno 1967].) U.S. 293 87 S.Ct. As stressed court in “Stovall strikes the high Kirby, appropriate constitutional balance between the to be suspect protected and the interest of in the prejudicial procedures society prompt (P. L.Ed. crime.” an unsolved investigation
and purposeful this balance tilting deliberately We 2d, err 418-419].) again pp. the People. against its case, par-
In the complete photographs views) made avail- (both were taken and were ticipants front and side had told officers police able to defense counsel trial. The victims the officers Accordingly, were and an suspects Hispanic. a black witnesses, Hispanics and six at the six blacks displayed for that purpose. who cards supplied marked their identifications the danger to reduce help here procedures employed certainly at the suggestion *19 protection affords no absolute
The of counsel at presence In the words of one identifications. unreliable or against suggestive commentator, indicates the of the role of counsel at “A review there are some fact, of the services he can perform. limited nature use hinder the presence may indications that lawyer’s effective (Read, Con technique.” Lawyers Lineups: as an investigatory (1969) 17 UCLA or Avoidable Extravagence? stitutional Necessity Indeed, 339, 394, added.) considerable doubt exists as L.Rev. italics “it would lineup, at a suspect’s function of the proper be during active that defense counsel has no affirmative appear v. Williams Cal.3d lineup.” the course of the (People Read, Mosk, see also J.]; opn., by 478 P.2d Cal.Rptr. [dis. 942] 362-367.) pp. it is not passive lineup, surpris- Given the role counsel at played by is courts There Kirby. that the vast state have followed ing majority of suspects and efficient identification prompt a manifest need for the leads and close Investigative may open commission of a crime. following will needless and new rule cause majority’s necessarily fast. The very The suspect may in this identification delays process. critical perhaps chosen, counsel. Once not or he be slow in may selecting have counsel counsel. retaining be or other complications there financial may engaged. on vacation or for varied reasons otherwise Counsel cannot criminal Kirby delay investiga- but majority’s rejection Meanwhile, this tions, well be delay may very appreciable. and the the majority to a halt. investigation grinds Although pur- phase proceeding circumstances will justify ports recognize “exigent (ante, counsel,” 102), personnel busily engaged harried police without well in an are shackled because ongoing they may further investigation be unable whether not a true ex- “exigency” to determine or accurately proce- ists. This can further law enforcement complicate prolong dures without a benefit. reciprocal compensating
I have of se propriety views previously expressed my concerning lective to avoid reliance of the California Constitution upon provisions otherwise Court in applicable decisions of the United States Supreme identical, similar of the federal terpreting provisions or substantially Constitution. v. Disbrow 16 Cal.3d 118-121 (E.g., People 545 P.2d I do not those opn.].) repeat 272] [dis. views here.
The court’s rule is not Kirby supported only by great weight but common sense as authority, majority’s departure well. affirm I would unnecessary judgment unwise. con-
viction.
The petitions of parties both for a were denied November rehearing 19, 1981.