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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Earl FORTE, Defendant and Appellant.

No. A019226.

Decided: May 16, 1984

John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Stanley M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Quin Denvir, State Public Defender, Neil Rosenbaum, Deputy State Public Defender, San Francisco, for defendant and appellant.

Defendant Forte was found guilty by a jury's verdicts of robbery with the use of a firearm, and of possession of a concealable firearm by one previously convicted of a felony, as forbidden by Penal Code section 12021.   He appeals from the judgment which was entered upon the jury's verdicts.

Uncontroverted evidence before the jury established the following factual context.

Two undisguised men entered a San Francisco jewelry store.   One held a gun to the salesperson's head and ushered her to a back room.   She had been able to observe the gun wielder for two or three minutes.   The men then smashed open display cases, stole a large quantity of jewelry, and left the premises.   A bystander saw the two men run from the store, and enter and drive off in a beige Cadillac;  he was able to record the vehicle's license number which he reported to the police.   Officers soon observed, unattended in a parking lot, a similarly licensed beige Cadillac.   The vehicle was kept under surveillance for a while until it was entered by defendant Forte and two others, and driven off.   The car was promptly stopped and its occupants ordered out.   As Forte exited, he tossed articles of jewelry onto the street.   Upon his arrest more jewelry was found in his pockets.   A here unquestioned search of the Cadillac revealed yet more jewelry, and .32 caliber bullets.   The salesperson thereafter identified the jewelry thrown by Forte, and that found on his person and in the Cadillac, as jewelry which was missing after the robbery.   And at a prearraignment lineup, as also at the trial, the salesperson identified Forte as the robber who had held the gun at her head.

Few jury convictions, we opine, are attended by such convincing evidence of guilt.

Forte's only appellate contention is that:  “Appellant was denied his constitutional right to assistance of counsel at his prearraignment lineup.”

No attorney, as indicated, attended Forte's prearraignment lineup.

At the trial's commencement Forte moved to exclude the salesperson's identification evidence, “on the ground that the denial of his right to counsel at the prearraignment lineup” rendered it constitutionally inadmissible.   The motion was denied.

The parties agree that the county public defender's statement in the superior court, of the material facts on his unsuccessful motion, is fair and reasonable.   It follows.

“[T]his incident occurred on April 19th and Mr. Forte was arrested on April 19th.   On April 21st at about 1:00 o'clock, Inspector Bowman came down to the Public Defender's Office and he asked to see any supervising attorney.   I am a supervising attorney.   I went to the front desk.   At that point, I had absolutely no connection with Melvin Forte.   And we were at that point—our office was not representing anybody in this case.   Inspector Bowman informed me there was going to be a lineup involving Mr. Forte and Ronald Goodman, who at one point was a codefendant in this case, the lineup would be held at about 1:30 and could I attend.   And without getting into the question of who I would represent, I indicated that if he would provide me with police reports, at least initial incident reports, I would attend.   Inspector Bowman indicated that he was not willing to do that.   And I told Inspector Bowman then I would not attend.   So Inspector Bowman went ahead and held his lineup.   There was, to my knowledge, no attorneys present.”

As he did in the superior court, Forte here relies upon People v. Bustamante (1981) 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927.

In People v. Fowler (1969) 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, the state's high court, following United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, held that a defendant in custody was entitled to the presence of counsel at a prearraignment lineup.   Thereafter the United States Supreme Court in Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, reversed itself and held otherwise.   In People v. Bustamante, supra, 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927, the state's Supreme Court was again presented with such a problem.   Adhering to its earlier holding in Fowler, the Bustamante court held “that article I, section 15 of the California Constitution affords to a defendant the right to the presence of counsel at a preindictment lineup.”  (30 Cal.3d at p. 102, 177 Cal.Rptr. 576, 634 P.2d 927.)

 Bustamante is binding upon this court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

But we observe further holdings of Bustamante.

“[A] properly conducted lineup, staged as soon as feasible after the crime,” not only “becomes an invaluable police technique to enhance the reliability of identification” (30 Cal.3d at p. 98, 177 Cal.Rptr. 576, 634 P.2d 927), but it also serves often and promptly to eliminate the innocent as suspects.

“[I]f counsel cannot be present within a reasonable time, such exigent circumstances will justify proceeding without counsel.”  (30 Cal.3d at pp. 101–102, 177 Cal.Rptr. 576, 634 P.2d 927;  emphasis added.)

Bustamante also made it clear that counsel for such a jailed suspect “plays only a limited role in the lineup”;  he does not preside over it, nor does he make or enforce its conditions.  “[C]ounsel ‘cannot rearrange the personnel, cross-examine, ask those in the lineup to say anything or to don any particular clothing or to make any specific gestures.   Counsel may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate․  At most, defense counsel is merely present at the lineup to silently observe and to later recall his observations for purposes of cross-examination or to act in the capacity of a witness.”  (30 Cal.3d at p. 99, and fn. 7, 177 Cal.Rptr. 576, 634 P.2d 927.)

Bustamante thus articulately, and reasonably, accommodates the sometimes conflicting right of those criminally accused to counsel and to due process, with the corresponding right of the People of California to the same “due process of law.”  (See Stein v. New York (1953) 346 U.S. 156, 196–197, 73 S.Ct. 1077, 1098–1099, 97 L.Ed. 1522.)

 We are of the opinion, under the above criteria, that the salaried county public defender was under a duty to attend the proposed lineup, without imposing conditions for his attendance.   Further, we think, such an attorney may not, by such noncooperation prevent a timely lineup, or insure the reversal of a conviction if it in his absence shall be held.   And such conduct, calculated to prevent any lineup except on the imposed condition, reasonably must be held to have created such “exigent circumstances [as would] justify proceeding without counsel.”  (See People v. Bustamante, supra, 30 Cal.3d 88, 101–102, 177 Cal.Rptr. 576, 634 P.2d 927.)

 Furthermore, were we arguendo, to here assume error, we should be obliged to declare it harmless under the criteria of the state's Constitution, article VI, section 13, People v. Watson (1956), 46 Cal.2d 818, 836, 299 P.2d 243, and Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.  (See People v. Fowler, supra, 1 Cal.3d 335, 350, 82 Cal.Rptr. 363, 461 P.2d 643.)

The judgment is affirmed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.