PEOPLE v. BAINES (1980)

Defendant was charged (together with Michael Allen Jones) with two counts of robbery. After a jury trial¹ he was found guilty and sentenced to state prison. He has appealed; we reverse.

The theory of the prosecution's case was as follows: the victims, Wilson and Jenkins, left a large apparently noisy party at about 4:00 a. m.; they walked to their car, parked a short distance away and around a corner but were followed by two men, who held them up and took money and jewelry. The robbers left in the direction of the party; they were followed by the victims who saw two men (the defendants) enter a car parked in front of or near the party scene. A patrol car came along, the victims hailed it and a chase ensued, resulting in the apprehension of the defendants and discovery of the proceeds of the robbery in the possession of two girl passengers.

Defendant denied participating in the robbery and claimed that he and Jones had just left the party to enter their car, for the purpose of driving the two women passengers and another man home.

I

Prior to trial, defendant had moved for a pretrial lineup. The motion was denied on the sole ground that, coming two and one-half months after the arrest, it was untimely.² Defendant here contends that, under Evans v. Superior Court (1974) 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681, the denial was in error and compels a reversal with directions to dismiss. We agree.

There can be no real question but that the identification testimony was weak. The two victims admittedly had drunk heavily during the evening and morning; one victim was under the influence of marijuana. The robbers were not within sight of the victims during the chase, which was around a corner. The stories told by the victims were inconsistent in almost every particular except that both agreed they had been robbed. The times testified to concerning the girls and their male companion were such that it was not impossible that the robbers had passed the loot to them just before they left the party and joined the defendants. The only loot actually found on the defendants was a coat which one victim testified (without corroboration) was his and which, having been turned over to him at the time of arrest was not available at trial and which was not shown to have been a unique garment. As we have pointed out above, the trial court did not deny the lineup because of any doubt that an adequate showing of its importance had been made. Thus the first requirement of Evans was met.

Defendants were represented by appointed counsel at the preliminary hearing. Those counsel were thereafter relieved and trial counsel were not appointed until arraignment in superior court-the appointment of counsel for this defendant was on January 18, 1979, three weeks after the arrest. Under the rules of the superior court, the motion herein involved could not be made prior to the required pretrial conference, which was on March 15, 1980. The motion was contingently granted on that date³ ; the People having objected, it was finally heard in March 21, 1980. We conclude that the defendant's counsel moved as rapidly as the circumstances of this case permitted.

The language in Evans (at p. 626, 114 Cal.Rptr. 121, 522 P.2d 681) on which the People here rely is as follows: “The broad discretion vested in a trial judge or magistrate includes the right and responsibility on fairness considerations to deny a motion for a lineup when that motion is not made timely. Such motion should normally be made as soon after arrest or arraignment as practicable. We note that motions which are not made until shortly before trial should, unless good cause is clearly demonstrated, be denied in most instances by reason of such delay. Dilatory or obstructive tactics made under the guise of seeking discovery but which tend to defeat the ends of justice will necessarily be weighed heavily on timeliness grounds against the granting of the motion within discretionary limits ” We conclude that that language refers only to such delay as would interfere with a timely trial-in Evans itself, where the Supreme Court ordered a further hearing on such a motion, the decision (on a writ of mandate) necessarily involved a lineup many months after Evans' arrest.

We point out that a pretrial lineup is a two-edged sword. It may result in strengthening the People's case; it may weaken it. That is a risk a defendant takes in seeking a lineup. It is true that, the longer a lineup is postponed the greater the possibility that memories may fade; that possibility is equally existent in an in-trial identification. That possibility did not deter the Supreme Court in Evans; it does not affect our decision here.

The Attorney General suggests that the remedy for the erroneous denial of a pretrial lineup is a simple reversal. We disagree. The purpose of a pretrial lineup is to test the accuracy of identification before that identification has been solidified by in-court testimony identifying an alleged criminal seated at counsel table and necessarily already identified by the prosecution. A lineup, now ordered, after the defendants have been twice identified at trial would not serve the purpose for which Evans required it. The damage to defendant's case has already taken place; it is nonreversible at this time. The order here must be for a reversal with directions to dismiss the case.

II

Since we reverse for the reasons above given, we need not, and do not, reach the other errors urged on us by defense counsel.

The judgment is reversed with directions to dismiss the case against defendant.

FOOTNOTES

1.  This was a second trial, the first ending in a mistrial because the jury was unable to agree.

2.  The trial court summed up its decision as follows:“That might help your record, too. I'm not talking about the timeliness in respect to the trial date. I'm talking about timeliness in respect to the date of the event and such as that.”

3.  The minute for that date reads: “Defense motion for a pre-trial line-up is received and filed. Order for lineup will be signed subject to People's review of motion and acceptance of same. If People object to line-up matter will be calendared prior to trial for formal hearings.”

KINGSLEY, Acting Presiding Justice.

McCLOSKY and MUNOZ,* JJ., concur.