People v. Fields

Defendant was convicted after a trial by jury of burglary (Pen. Code, § 459), rape by use of threats (Pen.Code, § 261, subd. 4), and oral copulation (Pen. Code, § 288a). He appeals from the judgment.

In the early morning hours of January 28, 1967, Mrs. Alicia Martin was awakened by a man standing over her shaking her shoulders to “wake up.” Mrs. Martin was able to view the man’s face for approximately 30 seconds from a distance of three feet before the man blindfolded her with a lady’s stocking, tied her hands behind her back and removed her sleep robe. This view was facilitated by illumination from a street lamp outside her bedroom window. Prior to this the man had pressed a kitchen knife against Mrs. Martin’s throat and threatened her life if she didn’t do what he asked. Mrs. Martin acknowledged that she understood his intentions. The man then committed the acts of which he stands convicted.

During all this time the man was very talkative, and Mrs. Martin listened closely and stated that she “knew if I heard the voice again I would be able to identify it.” Also, after the first act of intercourse the man agreed to untie her hands, being convinced by Mrs. Martin that she feared for the safety of her three small children. During the subsequent physical contact she could feel recessed blackheads on the upper portion of his back. She further noted a scent of Jade East cologne.

Mrs. Loretta Schooler, the victim’s sister, arrived at the apartment at 7a.m. Mrs. Martin’s children told her that a man had just run through the house. She proceeded into the bedroom and listened to Mrs. Martin’s account of what had occurred. She then went outside,' looked around and saw a “kid” crouching in the bushes approximately 150 feet away. Mrs. Schooler had no doubt that the person she saw was the defendant; Loretta Schooler positively identified the déféndánt at a police lineup of six persons. '-'

Defendant contends prejudicial- error was committed by the trial court 'in allowing the prosecutor to cross-examine

' Defendant’s mother, testifying for the defense, stated that at 7:30 a.m. on the day the crimes were committed defendant was in her home in bed with his girl friend Linda B. and that she could recall the specific date because she 'marked her calendar for this reason. She admitted that she had talked-with District Attorney Rupert on a previous occasion and explained the red pencil marks on her calendar, .which' began in January and extended for six months. She stated that she told Mr. Rupert that the letters “L.B.” between the dates of January 27th and 28th stood for the last date she was supr posed to take birth control pills. She also told him that, the other red marks on the calendar had reference to dates for taking such pills.

: On cross-examination the prosecutor asked how she could recall this particular date. She responded to the effect that it so disturbed her to catch her son in bed with a woman that she marked the date on her calendar. The prosecutor then, elicited from her the contents of their previous conversation at her home about the other red pencil marks on her calendar for the month of January. She had told him that the other red marks on the calendar related to the taking, of birth control pills.

In view of the fact that the mother was attempting to provide an alibi for her son, there was npthing improper in the prosecution’s questions as to how she remembered that particular day and the subsequent questions regarding the marks on the calendar. The cross-examination was not on collateral matters having no relevance to the issues.in the case.

Defendant contends that he was inadequately represented by counsel since the defense did; not call Linda B. as a witness. He maintains that Linda was the key witness .who could have substantiated the alibi.

In In re Beaty (1966) 64 Cal.2d 760 , 764 [ 51 Cal.Rptr. 521 , 414 P.2d 817 ], the court states: “To justify relief on the ground that counsel was inadequate; it must appear that the trial was reduced to a farce or sham through the attorney’s lack of competence, diligence, or knowledge of law. [Citation.] If a crucial defense is withdrawn from the case through the failure of counsel to. investigate carefully all defenses of fact and law, the defendant has not received adequate representation. [Citation.]”

Defendant contends that testimony concerning the lineup identifications of defendant at the police station was improperly admitted since the record fails to show that he was represented by counsel at the time as now required by United States v. Wade (1967) 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 1926 ] and Gilbert v. California (1967) 388 U.S. 263 [ 18 L.Ed.2d 1178 , 87 S.Ct. 1951 ], Defendant urges this court to grant limited retroactivity to the rule of those cases, maintaining that they apply to all cases tried after June 12, 1967, the date of those decisions.

However, the rule in Wade and Gilbert is not applicable here, for in Stovall v. Denno (1967) 388 U.S. 293 [ 18 L.Ed.2d 1199 , 1203, 87 S.Ct. 1967 ], the court ruled: “We hold that Wade and Gilbert affect only those cases and all future eases which involve confrontations for identification purposes conducted in the absence of counsel after this date. ’ ’

This decision has been interpreted to mean that the Wade-Gilbert rule affects only lineups held after those decisons, not trials held thereafter. (People v. Feggans (1967) 67 Cal.2d 444 , 448 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ]; People v. Harris (1967) 67 Cal.2d 866 , 872 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ].) The lineups in the instant case preceded the date of Wade by three months, and therefore these rules are inapplicable.

Finally, defendant urges it was prejudicial error for the trial court to admit testimony of the victim’s identification of defendant made through a two-way mirror in violation of the rights protected by the Fourteenth Amendment.

Stovall, supra, requires the appellate court to scrutinize the record with respect to the showup to determine whether a defendant was denied due process by the part the showup played in his conviction. (Stovall v. Denno, supra, 18 L.Ed.2d at pp. 1202, 1206; People v. Feggans, supra, 67 Cal.2d at pp.