People v. Baines

¶1I respectfully dissent from the majority’s holding that under the circumstances of this case, appellant’s motion for a pretrial lineup was untimely. Although the majority does not acknowledge it, today’s decision portends a retreat from this court’s holding in Evans v. Superior Court (1974) 11 Cal.3d 617 [114 Cal.Rptr. 121, 522 P.2d 681].

¶2Prior to his first trial,1 appellant moved for a pretrial lineup. The trial court denied the motion on the ground that it was untimely since it had not been made until two and one-half months after his arrest. Appellant contends that under Evans, supra,11 Cal.3d 617, the denial of his motion was erroneous.

¶3*151Evansheld that “due process requires .. . that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. . . . when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of mistaken identification which a lineup would tend to resolve. [Fn. omitted.]” (Id., at p. 625.) Since the prosecution does not contend that appellant failed to make a showing sufficient to justify his request for a lineup, the question before this court is whether the motion was timely.

¶4The majority concedes that appellant cannot be charged with being dilatory for the 30-day delay between his arraignment on February 13, 1979, and the filing of the motion for pretrial lineup at the pretrial conference on March 15, 1979. Appellant can hardly be faulted for his compliance with the local rule requiring that all pretrial motions be noticed for the pretrial conference. Nevertheless, the majority holds that appellant’s motion for a pretrial lineup was untimely because no justification was presented for his failure to seek such a lineup in the municipal court. Quite the contrary is the case. The record before this court reveals a more than adequate explanation as to why the motion was not brought until after appellant’s arraignment in superior court.

¶5Appellant and his codefendant were arrested on December 30, 1978. The public defender was appointed to represent both of them on January 4, 1979. On January 18, the public defender declared a conflict of interest and private counsel was appointed to represent appellant. How can appellant be charged with being dilatory in failing to bring the motion for a pretrial lineup between January 4 and January 18, 1979, when the public defender, who would have had to bring the motion, was under an ethical obligation to refrain from representing appellant due to the conflict of interest! (See, e.g., Pen. Code, § 987.2; Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 529 [112 Cal.Rptr. 478].)

¶6The preliminary hearing took place on January 30, 1979. Appellant’s second attorney had only seven working days in which to prepare for the hearing. During that time, he would have had to (1) review the police reports; (2) interview appellant; (3) interview the three occupants of the car as well as any other persons attending the party who might have been able to substantiate his client’s account of his activities on the night of the robbery; (4) interview the arresting officers, and, if possible, the victims and the codefendant; and (5) visit the area where the robbery occurred, to determine if eyewitness identification was a mate*152rial issue in the case and if there existed the reasonable likelihood of a mistaken identification that would justify a request for a pretrial lineup.

¶7Moreover, this is not a case in which the value of a pretrial lineup was “substantially diminished” by events occurring at the preliminary hearing. Only one of the victims (Wilson) of the alleged robbery testified at the preliminary examination. While he identified appellant, who was dressed in a jail uniform and seated at the defense table with his attorney, Wilson was unable to identify with any certainty the codefendant, who was not in jail garb.

¶8At the close of the preliminary hearing, the magistrate determined there was probable cause to hold the accused to answer and directed them to appear in the superior court on February 13, 1979. Whether or not there was then a “prejudicial gap in legal representation” (see maj. opn., ante, at p. 149), it is not at all clear that the magistrate thereafter had jurisdiction to entertain a motion for a pretrial lineup. (See, e.g., People v. Bomar (1925) 73 Cal.App. 372, 377 [238 P. 758] [after a holding order has been made “the magistrate has exhausted all the power in the premises with which he has been invested by law”]; Holman v. Superior Court (1981) 29 Cal.3d 480, 485-486 [174 Cal.Rptr. 506, 629 P.2d 14] [a magistrate has jurisdiction to order discovery prior to the preliminary hearing].) It is clear that the superior court did not have jurisdiction to entertain the motion prior to the filing of the information on February 13, 1979. (See, e.g., Pen. Code, §§ 737, 739; In re Geer (1980) 108 Cal.App.3d 1002, 1005-1006 [166 Cal.Rptr. 912].)

¶9More importantly, Evansdoes not require a defendant to seek a pretrial lineup in the municipal court. Evansmerely requires that “[s]uch [a] motion ... be made as soon after arrest or arraignment as practicable. [Italics added.]” (Evans, supra, 11 Cal.3d at p. 626.) The Evanscase involved a request for a pretrial lineup made, for the first time, (1) after a defendant’s arraignment in superior court, (2) after a defendant had been identified as being the person observed at the scene; and (3) after he had been identified at the preliminary hearing by one of the three witnesses who were present when the crime with which he was charged took place.

¶10Evansgoes on to 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.” (Ibid.) Why is this the rule? Not surprisingly, the reason given is not that the motion should be *153made to the magistrate if at all possible. Evanshad already approved the bringing of a motion before the magistrate or in the superior court. Instead, Evansinforms us that “[dilatory or obstructive tactics made under the guise of seeking discovery but which tend to defeat the ends of justice ... necessarily [weigh] heavily on timeliness grounds against the granting of the motion . . ..” (Ibid.) No one has asserted or even suggested that by presenting his motion for a pretrial lineup for the first time in the superior court, at the first opportunity provided by the rules of the superior court, appellant was engaged in dilatory or obstructive tactics.

¶11Finally, Evansspeaks about the pretrial lineup in terms of its use as a discovery device. Lineups are requested to secure the knowledge to be gained therefrom “sufficiently in advance of trial” to enable the accused to prepare for trial. (Ibid.) Obviously, this may be achieved when the motion is made after the superior court arraignment. It is possible that there may be cases in which a court might reasonably conclude that a pretrial lineup held after the preliminary hearing would be of so little value that it should be denied. However, that is not the case here.

¶12I would hold that the trial court abused its discretion in denying appellant’s motion for a pretrial lineup.