PEOPLE v. ROBINSON (1984)

On a jury's verdict, defendant Robinson was found guilty of the crime of selling marijuana in violation of Health and Safety Code section 11360, subdivision (a).   Imposition of sentence was suspended, and he was placed on conditional probation.   He has appealed from the order imposing probation.

He first contends that:  “The trial court erred in denying appellant's motion to set aside the information pursuant to Penal Code section 995 on the ground that the appellant was denied the right to produce witnesses on his own behalf at the preliminary hearing.”

We may assume, but only arguendo, that the complained of error at the preliminary hearing, did occur.

 It is first observed that the magistrate had fundamental jurisdiction to preside over the preliminary hearing.  (Pen.Code, § 806.)

The recent case of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941 teaches:

“Henceforth irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.”

Indeed, Pompa-Ortiz also holds that even the “presence of a jurisdictional defect which would entitle a defendant to a writ of prohibition prior to trial does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought.”  (27 Cal.3d at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941.)

 Here Robinson was not denied a fair trial nor did he otherwise suffer prejudice.   The alleged preliminary hearing irregularity was the magistrate's rejection of his offer to produce a second police officer who was an eyewitness to another officer's identification of Robinson as the crime's perpetrator soon after its commission.   It is argued that “if one's identification failed to match the other's, the identity of appellant as the man who bought [sic;  sold?] the marijuana would be in conflict.”   Robinson was not denied related discovery or other pretrial relief in the superior court, and the second officer there testified and was cross-examined.

Reversible error does not here appear.

Robinson's remaining contention is that:  “The trial court erred in permitting the in-court identification of the appellant since appellant's right to counsel was violated at the lineup.”

The contention is founded on the following factual context.

Police officers were engaged in a “buy program” in an area where narcotic and dangerous drug traffic was prevalent.   Experienced plain clothes officers in unmarked automobiles were assigned to patrol the area's streets, pretending that they were seeking narcotics.   When one of them was approached for such a transaction and a sale was made, the person was closely observed and his description and location reported by radio to nearby “back-up” officers in vehicles, who then searched for the described person and arrested him when found.

An experienced police officer, assigned to the program, was cruising the area's streets when a person approached and asked if he wanted a “nickel.”  (In the contraband traffic usage a “nickel” is a baggie of marijuana priced at five dollars.)   The officer answered affirmatively, and a baggie of marijuana was handed him for which he paid five dollars.   The person had been in the officer's sight for two or three minutes during which time he was closely observed.   The officer “kind of dallied a little bit so that [he] could get a further look at him, get a better look at the person, and so [he] could remember his description better.”

The person was distinctively attired.  “He had a green watch cap on, brown and maroon jacket that came to a V in the front here like this, he had on two thermal undershirts, which was to me the most distinctive characteristic of him on that evening, is he was the only one that was dressed like that, that I saw that evening, and bluejeans on.”   When the transaction was completed the officer radioed the person's location and description to the back-up officers.

The back-up officers, four blocks away at the time of the radio call, came to the area and within about 10 minutes they had arrested defendant Robinson.   His appearance and clothing answered precisely the description radioed by the undercover officer.   Robinson was placed in the back-up vehicle which continued cruising, waiting for radio calls of “other undercover officers.”

Some time between one-half and one and a half hours after his purchase of the “nickel” baggie of marijuana, the undercover officer was called to the nearest police station.  “There were people who were arrested ․, they didn't say whether it was my purchase or what, they just said there were people there we had to go see, if my guy was there, ․ they didn't say my guy was there, you have to see if he is there.”

At the police station there were from five to ten people seated, or standing, in the “booking room.”   Defendant Robinson was one of them, and he was immediately recognized by the officer as the person who had a short time before sold him the marijuana.

California's high court, contrary to Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 holds that at a “preindictment [or preinformation or precomplaint] lineup” a suspect is entitled to the presence of counsel.   (People v. Bustamante, 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927, passim.)

We may reasonably assume that at the time of Bustamante's lineup he was in, or nearby, a Los Angeles jail facility with both preindictment and postindictment inmates, from whom a reasonably constituted lineup could be made up.

 But while Bustamante is unquestionably the law of this state, it does not cover “in-field” confrontations and identifications.   Such in-field identifications have been consistently permitted.  (People v. Floyd, 1 Cal.3d 694, 714–715, 83 Cal.Rptr. 608, 464 P.2d 64, overruled on other grounds in People v. Wheeler, 22 Cal.3d 258, 287, 148 Cal.Rptr. 890, 583 P.2d 748;  In re Rafael, 132 Cal.App.3d 977, 984, 985, 183 Cal.Rptr. 584;  People v. Jones, 126 Cal.App.3d 308, 316–317, 178 Cal.Rptr. 818;  People v. Savala, 116 Cal.App.3d 41, 48–50, 171 Cal.Rptr. 882;  People v. Odom, 108 Cal.App.3d 100, 110, 166 Cal.Rptr. 283;  People v. Kilpatrick, 105 Cal.App.3d 401, 411–412, 164 Cal.Rptr. 349;  People v. Hall, 95 Cal.App.3d 299, 308–309, 157 Cal.Rptr. 107;  People v. Anthony, 7 Cal.App.3d 751, 763, 764, 86 Cal.Rptr. 767.)

 An identification made in a sheriff's office (see People v. Hall, supra, 95 Cal.App.3d 299, 308, 157 Cal.Rptr. 107) or a police station (see People v. Floyd, supra, 1 Cal.3d 694, 714, 83 Cal.Rptr. 608, 464 P.2d 64) soon after a crime's commission may reasonably be treated as an in-field identification.

 And it is said:  “The police are not to be criticized because they attempted to establish an affirmative identification as promptly as possible.”  (People v. Floyd, supra, 1 Cal.3d 694, 714, 83 Cal.Rptr. 608, 464 P.2d 64.)  “After reviewing Bustamante and California precedent on the precise question before us ․, we conclude the rationale of California cases is still persuasive.  ‘[T]he immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.’ ”  (People v. Jones, supra, 126 Cal.App.3d 308, 316–317, 178 Cal.Rptr. 818.)

Further, it will be noted that at the usual in-field identification, the suspect alone is the subject.   Here, as noted, there were from five to ten persons from whom the identification was made.

We find no merit in the instant contention also.

The order imposing probation is affirmed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and NEWSOM, J., concur.