People v. Bethea

Opinion

By information, defendant was charged with robbery while armed with a gun (Pen. Code, § 211), and he pleaded not guilty.

On February 22, 1968, Hector Aguilar was working as the manager of the Woodlawn Liquor Store located at 128 East Santa Barbara Street, Los Angeles. At about 8 p.m., he noticed a man in a long, black trench coat enter the store; there were approximately six to eight, “maybe more,” customers in the store. While ringing up a customer’s order, Aguilar kept glancing at the man in the coat and observed defendant alongside the man. Defendant vaulted over the counter with a gun in his hand and ordered Aguilar’s clerk on the floor. The clerk was “stomped” on by defendant for attempting to reach a silent alarm button, and defendant struck Aguilar in the back of the head with the gun for not giving up the cash. Aguilar did not lose consciousness from the blow; he took approximately $500 from the cash register, put it in a bag, and handed it to defendant. Defendant then ordered Aguilar to the floor and fled with the money. On his knees, Aguilar reached into a drawer, grabbed a gun, and then went after defendant but was unable to apprehend him.

Aguilar testified he was certain that defendant was the robber with the gun. The robbery lasted three to five minutes, and Aguilar spent three-quarters of the time observing defendant’s face. Defendant was wearing a grey pair of slacks and a black “Eisenhower jacket.” Aguilar had been the victim of three robberies.

Aguilar was shown photographs on three or four occasions. Officer John Noonan first showed Aguilar a group of six or seven photographs at Aguilar’s place of business within a week of the robbery. Aguilar picked out the photograph of the man who had worn the trench coat at the time of the robbery. Within the next week, again at his place of business, Aguilar was shown a second group of seven or eight photographs of male Negroes. The officer asked Aguilar to “look at the pictures.” There was nothing unusual about defendant’s photograph which made it stand out from the other photographs. Aguilar looked through the second group of photographs twice, the first time selecting four photographs. From these four photographs he picked out defendant’s photograph as the likeness of the robber in the Eisenhower jacket. After seeing defendant’s photograph, Aguilar said to the officer, “This is the one.” Aguilar was shown a third set of seven to eight photographs, also during 1968, from which he again picked out defendant’s photograph as the likeness of the robber in the

Defendant’s contention (1) is that the prosecution’s remarks in his closing argument'violated the rule established in Griffin v. California, 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], which prohibits references to a defendant’s assertion of his Fifth Amendment right against self-incrimination and his not taking the stand in his own defense. During the deputy district attorney’s opening argument, he alluded to the testimony of defendant’s wife that she and defendant had moved from Los Angeles to Chicago and that there was no possible way that defendant could have been in Los Angeles on February 20, 1968. The deputy then referred to the certified copy of the municipal court docket which shows that defendant was in the Los Angeles court on February 20, 1968. The deputy then stated to the jury: “So, ladies and gentlemen, basically what this case boils down to is that we have the prosecution’s‘positive evidence that the defendant is guilty of robbery in the first degree, and we have the defense which has just been shot out of the water, zero. So you have the prosecution’s case against nothing for the defense. The state of the record is that there has been no explanation given for this, and you will get the exhibits in the jury room, and you will determine whether or not the defendant is guilty beyond a reasonable doubt.” Defendant claims these remarks constitute prejudicial error. The remarks made by the prosecution go to the state of the evidence, which is entirely proper. (People v. Hardy, 271 Cal. App.2d 322 , 330-331 [ 76 Cal.Rptr. 557 ]; People v. Burns, 270 Cal.App.2d 238 , 247 [ 75 Cal.Rptr. 688 ].) There is absolutely no reference to the fact that defendant did not take the stand; nor is the remark susceptible of such interpretation by inference of innuendo.

Defendant next claims that the refusal of the trial court to grant a continuance was a denial of due process of law. Defendant’s assertion is based on his claim that the prosecution’s evidence (the municipal court docket) which rebutted defendant’s wife’s testimony that they were in Chicago at the time of the crime, came as a complete surprise. He claims that his request for two weeks’ continuance would have provided time to investigate and find witnesses bn the validity of the evidence. A continuance will be granted when the ends of justice require it. (Pen. Code,

Defendant’s contentions (3), (4) and (5) are related. The first two pertain to identification procedures approved in United States v. Wade, 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 1926 ] and Simmons v. United States, 390 U.S. 377 [ 19 L.Ed.2d 1247 , 88 S.Ct. 967 ]. Defendant would have us extend the Wade requirement that counsel be present at lineups to situations where witnesses are shown photographs by the police in their efforts to identify perpetrators of crimes. This is not constitutionally required. (Simmons v. United States, supra, at p. 384 [19 L.Ed.2d at p. 1253]; People v. Lawrence, 4 Cal.3d 273 , 277 [ 93 Cal.Rptr. 204 , 481 P.2d 212 ]; People v. Dontanville, 10 Cal.App.3d 783 , 791 [ 89 Cal.Rptr. 172 ].)

We agree with the philosophy of Simmons, and must follow its principles (at p. 384 [19 L.Ed.2d at p. 1253]): “Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden

Defendant’s contention (6) is based on his assertion that the prosecution did not in any way show that the in-court identification by Aguilar was the product of Aguilar’s independent memory. This is directly contra to the facts in the record. Aguilar testified that he had no doubt of his identification of defendant, and felt that he could identify defendant from his observations at the liquor store independently of any viewing of photographs. Defendant also discusses the hazards inherent in an in-court identification and inferentially would have this court impose a requirement that the prosecution prove that the identification was free from the “suggestiveness of the court’s proceedings.” We recognize that every accused present at trial bears a burden and/or stigma of the allegation of guilt by the very fact of his being on trial, but Wade and Simmons and their progeny do not extend to this aspect of the identification process.