People v. Callaghan

Opinion

The Monterey County Grand Jury investigated, and took evidence on, charges that defendant Callaghan had sexually molested several young girls. Placed in evidence as Exhibit No. 1 at the hearing was a police lineup photograph depicting several male adult persons. A police officer testified that “number 3” of the photograph was a portrayal of Callaghan. Asked if her molester’s likeness appeared on Exhibit No. 1, each of his five alleged victims said he was “number 3” thereon. The grand jury thereafter returned an indictment charging Callaghan with nine separate felonious sexual offenses.

During Callaghan’s trial the court held that the “lineup identification” was constitutionally invalid according to Wade and Gilbert (United States v. Wade, 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 1926 ], and Gilbert v. California, 388 U.S. 263 [ 18 L.Ed.2d 1178 , 87 S.Ct. 1951 ]), because of denial to Callaghan of his right to counsel at, the time. Thereafter the court granted a motion to suppress his in-court identification by two of the alleged victims. (See United States v. Wade, supra; People v. Martin, 2 Cal.3d 822 , 830-832 [ 87 Cal.Rptr. 709 , 471 P.2d 29 ].) Callaghan then moved to quash the grand jury indictment on grounds which will hereafter be discussed; that motion was denied.

There was substantial evidence produced at the trial in support of the jury’s verdicts. No contrary contention is made by Callaghan.

The resolution of a single issue will be dispositive of the many points which have been raised by Callaghan. The issue is stated by him substantially as follows. Because of the trial court’s holding that the “lineup identification” was constitutionally invalid, the lineup photograph, Exhibit No. 1 at the grand jury hearing, was incompetent evidence. Since each of the victim witnesses identified him only by reference to that exhibit, Callaghan’s indictment was supported by no evidence, and it should have been quashed on his motion.

Callaghan’s reliance is upon Greenberg v. Superior Court, 19 Cal.2d 319 [ 121 P.2d 713 ], and later authority following the holding of that case.

Greenberg and its lineage hold that: “A grand jury that indicts a person when no evidence has been presented to connect him with the commission of the crime charged, exceeds the authority conferred upon it by the Constitution and laws of the State of California, and encroaches upon the right of a person to be free from prosecution for crime unless there is some rational ground for assuming the possibility that he is guilty. . . . Such an indictment is void and confers no jurisdiction upon a court to try a person for the offense charged.” (19 Cal.2d, p. 322, italics added.)

But it has now been firmly held that Greenberg, using the term “no evidence,” intended the meaning of no evidence whatever iri the probative sense. It did not refer to evidence with logical probative value but which, for some constitutional or other reason, was subject to objection or suppression.

In People v. Warburton, 1 Cal.App.3d 815 [ 86 Cal.Rptr. 894 ] (hg. by Supreme Ct. den.; cert, den., 400 U.S. 1022 [ 27 L.Ed.2d 634 , 91 S.Ct.

In the instant case, Callaghan’s right to object to, or suppress, his improper lineup was also subject to waiver. (See People v. Williams, 2 Cal.3d 894 , 909 [ 88 Cal.Rptr. 208 , 471 P.2d 1008 ] [cert, den., 401 U.S. 919 ( 27 L.Ed.2d 821 , 91 S.Ct. 903 )]; People v. Harris, 18 Cal.App.3d 1 , 7 [ 95 Cal.Rptr. 468 ]; People v. Nabors, 12 Cal.App.3d 380 , 386 [ 90 Cal.Rptr. 649 ]; People v. Green, 3 Cal.App.3d 240 , 245 [ 83 Cal.Rptr. 491 ]; People v. Adams, 1 Cal.App.3d 29 , 32 [ 81 Cal.Rptr. 378 ] [cert, den., 398 U.S. 941 ( 26 L.Ed.2d 276 , 90 S.Ct. 1856 )].) Under the rule of People v. Warburton, supra, 7 Cal.App.3d 815 , 821, and its related authority, the trial court was not deprived of jurisdiction in the fundamental sense. The motion to quash the indictment was properly denied.

We observe further, the trial court’s conclusion that the lineup identification was contrary to Wade-Gilbert’s strictures. No finding was made that the photograph of the several subjects of the lineup, as used in the grand jury proceedings, was constitutionally, or otherwise, tainted; nor is such a contention made here. Indeed, it appears to have afforded more, and better, protection against mistaken identification than an otherwise permissible photograph of Callaghan alone would have given him. We, ourselves, have examined the photograph; we find nothing suggestive or improper about it. And, of course, Wade and Gilbert “do not apply to pretrial photographic identifications made of a suspect after his arrest.” (People v. Lawrence, 4 Cal.3d 273 , 275 [ 93 Cal.Rptr. 204 , 481 P.2d 212 ] [cert, den., 407 U.S. 909 ( 32 L.Ed.2d 682 , 92 S.Ct. 2431 )].)