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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Willie Lee DAMPIER, Defendant and Appellant.

Cr. 13130.

Decided: August 28, 1984

Valerie D. Toohey, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Nancy Sweet and David de Alba, Deputy Atty. Gen., for plaintiff and respondent.

Following a trial by the court, defendant was convicted of attempted second degree burglary.  (Pen.Code, §§ 664, 459.) 1  The attempted burglary, although of a residence, was found to be second degree because it occurred during the daytime.  (See former § 460.) 2  The trial court further found defendant had suffered five prior felony convictions.   Defendant was sentenced to the upper term of 18 months for the attempted burglary (§§ 18, 461, 664), and he received two five-year enhancements based on prior convictions for robbery and oral copulation (§§ 211, 288a, 667, subd. (a)), for an aggregate term of 11 years and six months.

On appeal, defendant challenges his identification by the burglary victim on two grounds:  (1) he was denied his right to counsel at an infield showup;  and (2) the showup was impermissibly suggestive.   He further contends the imposition of two five-year enhancements pursuant to section 667 was error for the following reasons:  (1) his sentence exceeded twice the base term in violation of section 1170.1, subdivision (g);  (2) application of section 667 deprived him of due process, equal protection of the laws and constitutes cruel or unusual punishment;  (3) section 667 is an unconstitutional ex post facto law;  and (4) the power to define crimes and fix penalties is vested exclusively in the Legislature.   We conclude these contentions are uniformly without merit and shall affirm.


Mrs. Noemi Abundez returned to her home at about 7:15 a.m. on November 16, 1982, after completing work on the “graveyard shift” at the Diamond Walnut plant.   As she watched the baby-sitter leave at about 7:20 a.m., Mrs. Abundez saw defendant walk by on the sidewalk in front of her house.   Although this made her nervous, she returned to the house to go to sleep.   After changing to her pajamas, Mrs. Abundez heard a slight noise and began to check the house.   She noticed a gate leading to the backyard was open.   She went to the baby's bedroom, opened the curtains, and saw defendant standing directly in front of her on the other side of the window.   Defendant put up a hand to block Mrs. Abundez' vision.   She went to the kitchen and called the police.   While on the telephone, she looked through the kitchen window and saw defendant jump the fence and run down the street.

Mrs. Abundez described the burglar to police as a black male wearing a pink shirt and a cap, and told them the direction he was travelling.   At approximately 7:30 a.m., a police officer in the vicinity heard a broadcast of this information.   Less than a minute later, the officer saw defendant driving from the direction of the attempted burglary.   Defendant's car was approximately three-and-one-half blocks from the crime scene and was the only one the officer observed.   Defendant, a black male, was wearing an “obviously pink shirt.”   The officer stopped defendant.   On the front passenger seat the officer observed a knit cap and a pair of gloves.   Other officers immediately brought Mrs. Abundez to that location.   There she identified defendant and he was taken into custody.   It was subsequently discovered that several screens had been removed from the back windows of Mrs. Abundez' house.



Defendant first contends the identification procedure used in this case was fatally defective in that he was denied the right to counsel at the infield showup.   Defendant urges People v. Bustamante (1981) 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927 is controlling, and mandates the presence of counsel at all infield identifications.   Defendant misreads Bustamante, which held only “that article I, section 15 of the California Constitution, affords to a defendant the right to the presence of counsel at a preindictment lineup ”  (Id., at p. 102, 177 Cal.Rptr. 576, 634 P.2d 927;  italics added.)  Bustamante did not determine whether a defendant is entitled to counsel at a prearrest infield identification, which is the question presented on this appeal.

 Defendant argues an infield or showup identification is a preindictment lineup within the meaning of Bustamante.   We disagree.   A “lineup” is a relatively formalized procedure wherein a suspect, who is generally already in custody, is placed among a group of other persons whose general appearance resembles the suspect.   The result is essentially a test of the reliability of the victim's identification.  (Bustamante, supra, 30 Cal.3d at p. 98, 177 Cal.Rptr. 576, 634 P.2d 927.)   The requirement of counsel's presence encourages the police to adopt regulations ensuring the fairness of such procedures.  (P. 99, 177 Cal.Rptr. 576, 634 P.2d 927.)   An in-field showup, on the other hand, is generally an informal confrontation involving only the police, the victim and the suspect.   One of its principal functions is a prompt determination of whether the correct person has been apprehended.  (People v. Anthony (1970) 7 Cal.App.3d 751, 764, 86 Cal.Rptr. 767.)   Such knowledge is of overriding importance to law enforcement, the public and the criminal suspect himself.  (P. 765, 86 Cal.Rptr. 767.)   An infield showup is not the equivalent of a lineup.   The two procedures serve different, though related, functions, and involve different considerations for all concerned.

Prior to Bustamante, the law in California was settled that counsel's presence was not constitutionally required at an infield identification.   (People v. Edwards (1981) 126 Cal.App.3d 447, 453–454, fn. 2, 178 Cal.Rptr. 876, and cases cited therein.)   In People v. Jones (1981) 126 Cal.App.3d 308, 178 Cal.Rptr. 818, the court considered whether Bustamante ' s reasoning should be extended to overturn this well-established precedent.   First noting the importance of knowing whether the right person has been detained, the court in Jones stated:  “In addition, the practical in-field problems of getting counsel, although not insurmountable, are clearly distinct and more burdensome than those presented in Bustamante, a consideration favoring a policy determination not requiring counsel under such circumstances.   Admittedly, some of the concerns expressed by the Bustamante court are present in an in-the-field identification in which a suspect may well be prejudiced when singled out as the culprit within a short period of time after the incident.   In balance, however, in weighing the respective individual and societal interests to be served, we conclude precedent on this issue to be correct.”  (Id., at p. 317, 178 Cal.Rptr. 818.)

Jones involved a pre-Bustamante identification (p. 316, 178 Cal.Rptr. 818), and Bustamante is expressly not retroactive.  (30 Cal.3d, supra, at p. 106, 177 Cal.Rptr. 576, 634 P.2d 927.)   However, we find its reasoning persuasive in considering a post-Bustamante infield identification.   The differences between a post-arrest, controlled lineup and an in-the-field showup distinguish Bustamante from this case.   Moreover, Bustamante recognized the right to counsel at a preindictment identification is not absolute.  “If conditions require immediate identification without even minimal delay, or if counsel cannot be present within a reasonable time, such exigent circumstances will justify proceeding without counsel.”  (Bustamante, supra, at pp. 101–102, 177 Cal.Rptr. 576, 634 P.2d 927.)   Even assuming Bustamante 's holding was applicable, the instant case would fall within this exception.   Defendant had been detained, but not arrested.   Whether the radio broadcast standing alone gave the officer probable cause to arrest would be problematical.   Releasing defendant could well mean permitting his escape.   Obtaining counsel for defendant at 7:30 a.m. would have generated an extended delay.   As noted by Bustamante, and uniformly held by the cases directly considering the issue of infield showups, these circumstances justify proceeding with the identification in the absence of counsel.   We conclude Bustamante does not extend beyond its express holding to preindictment lineups and defendant was not deprived of his right to counsel at the field identification in this case.  (People v. Edwards, supra, 126 Cal.App.3d at p. 453, 178 Cal.Rptr. 876.)


The judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise noted.

2.   At the time of the instant offense (November 16, 1982), section 460 provided in relevant part “1. Every burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building committed in the nighttime, is burglary of the first degree.  [¶] 2. All other kinds of burglary are of the second degree.”  (Italics added.)

FOOTNOTE.   Not Certified for Publication.

 CARR, Associate Justice.

PUGLIA, P.J., and EVANS, J., concur.

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