Opinion
—By jury trial appellant was found guilty of robbery (Pen. Code, § 211) and sexual battery (Pen. Code, § 243.4). He was sentenced to state prison.
The victim was accosted by appellant as she approached her parked car at 2 a.m. on November 20, 1985. Appellant grabbed her hair and pulled her to the ground. She began to scream but he held a hand over her mouth. He told her not to yell, and that he was going to stab her and “taste her.” He pulled up her skirt, placing his hand on the outer side of the middle part of her right thigh, touching her stocking but not her skin. However, when she made a loud scream, appellant stood up, took her purse and ran.
She ran after him screaming, “Go get that man.” Men in two cars followed appellant.
Kenneth DeLoach was a night security guard at a cafe about a block away. He heard the screams and saw appellant running down the street carrying a purse. As appellant turned the comer, two cars followed him and cornered him. One of the men from the cars stopped and picked up the purse. Appellant came back toward Mr. DeLoach, who detained appellant until the police arrived. The victim found appellant detained by Mr. De-Loach. One of the men from the cars returned the victim’s purse.
In-court Photographic Identification of Appellant After He Absented Himself From Trial
Appellant was present in court only on the first day of trial (Friday) when a jury was selected. Appellant failed to show up on Monday and the court
Since appellant was absent from trial, he was identified by photograph. (See, e.g.,
People
v.
Vargas
(1975)
Appellant’s trial counsel objected to showing the photograph to the witnesses on the ground it would be “leading and suggestive.” The objection was overruled. On redirect and recross-examination, the victim testified that before she took the stand the district attorney had showed her this one picture and asked her “[i]s that him?” Mr. DeLoach did not see the photograph until testifying at trial.
On appeal, appellant contends these were impermissibly suggestive identification procedures which deprived him of a fair trial. There is no. merit to this contention. Ordinarily a criminal defendant can be
required
to be present in the courtroom for the purpose of identification. (Pen. Code, § 1043 [“nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity”];
People
v.
Breckenridge
(1975)
In this case, the need for a photographic identification arose from appellant’s sudden voluntary absence after the trial had begun, therefore defense counsel’s suggestion that the prosecutor should have been required to assemble a photographic showup was not reasonable in comparison to the burdens on the court, prosecution, the witnesses, and the jury. Moreover, this case does not involve a reasonable likelihood of misidentification. The perpetrator was chased as he fled the scene with purse in hand, and was immediately captured one block away. The victim and the security guard identified appellant at the preliminary hearing. Moreover, after the preliminary hearing, appellant on two occasions approached Mr. DeLoach and spoke to him. Mr. DeLoach testified: “. . . He stopped me and says—he asked me did I remember him and I said ‘Yeah, I remember you.’ And he says T got me a lawyer now and we’re going to get you.’ . . .” On the second occasion, “[H]e came over and told me that he had been going back and forth to the doctor and—and that he had cancer and that if he went to jail he was going to die in jail, and he’s sitting there, tears running down his cheeks, and—he looks up at me and he says ‘Can you help me out?’ And I’m going ‘What can I say?’ . . .”
Under all the circumstances, no impermissibly suggestive procedures were used. 1
Sexual Battery
The Attorney General concedes appellant’s other contention that the evidence is insufficient to support appellant’s conviction of sexual
However, where the evidence is insufficient to sustain the offense charged but shows that the defendant is guilty of a lesser included offense, or an attempt to commit the offense, or a lesser degree of the offense, the court may reduce the crime rather than reverse outright. (Pen. Code, §§ 1159, 1181, subd. 6, 1260;
In re Hess
(1955)
As to count III (sexual battery, Pen. Code, § 243.4), the judgment is modified to provide that defendant is convicted of battery (Pen. Code, §§ 242, 243, subd. (a)). The cause is remanded to the trial court to sentence defendant on count III. In all other respects, the judgment is affirmed.
Boren, J., and Hastings, J., * concurred.
Notes
This case is not analogous to
People
v.
Vanbuskirk
(1976)
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.