Opinion
Opinion on pages 1-6 omitted.
HEARING GRANTED [*]
[168 Cal.Rptr. 299]Paul T. Suzuki, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Carol Wendelin Pollack and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.
KINGSLEY, Acting Presiding Justice.
Defendant was charged with, and after a jury trial was convicted of, robbery, receiving stolen property, possession of a firearm by an ex-felon, and two counts of possession of narcotics. He was sentenced to state prison for a total term of 11 years. He has appealed; we affirm.
On this appeal, defendant does not contest the sufficiency of the evidence to support the verdicts if all evidence was properly admitted. His contentions here are: (1) that in-court identification of him by one witness on count I (the robbery count) was improperly admitted because it was the fruit of an illegal line-up; (2) that he was improperly denied self-representation; (3) that the sentence was partly in error in that the trial court used the same facts both to impose the upper term on the robbery count and to enhance that term; and (4) that he is entitled to good/work time credit. We reject all four contentions.
I
Defendant was identified as one of the two robbers involved in count I by the victim and by three other witnesses. One of those witnesses had originally identified defendant at a line-up. In an excellent brief, counsel for defendant urges that the line-up was illegal because defendant was not represented by counsel at that line-up and that the subsequent in-court identification was tainted by that original identification. It is admitted that the United States Supreme Court, in Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, held that there was no federally recognized right to the presence of counsel at a line-up which precedes the institution of criminal proceedings. In People v. Chojnacky (1973) 8 Cal.3d 759, 106 Cal.Rptr. 106, 505 P.2d 530, the Supreme Court discussed Kirby and, in a three-judge opinion (Justices Burke, Wright and McComb) overruled the earlier case of People v. Fowler (1969) 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, and followed Kirby. Justice Mosk concurred in the judgment in an opinion that would have followed Fowler but held that Fowler had been satisfied. Justices Sullivan and Tobriner dissented. As the Attorney General concedes, this court is not bound by a Supreme Court ruling that is not joined in by a majority of the Justices. In two California cases decided after Kirby but before Chojnacky, the Kirby rule was applied and the pre-prosecution line-ups were approved (People v. Strawder (1977) 34 Cal.App.3d 370, 378, 108 Cal.Rptr. 901; People v. Faulkner (1972) 28 Cal.App.3d 384, 390, 104 Cal.Rptr. 625.) In the only post Chojnacky case to which we are cited, or have found People v. Williams (1977) 68 Cal.App.3d 36, 137 Cal.Rptr. 70 there is language, at page 42, citing and recognizing Chojnacky as authority but holding that, because the arraignment [168 Cal.Rptr. 300] had been unduly delayed, the line-up should be treated as though it had followed the arraignment.
In that state of the California law, we must decide the issue here presented as though it was one of first impression. We conclude that we should follow Kirby. A pre-prosecution line-up is an investigatory device to enable the police either to clear or to charge a suspect. A suspect, possibly with a criminal record, possibly resembling the description given by a victim or by witnesses, is presented (if the line-up is not otherwise invalid for suggestiveness) for identification together with other persons, some of whom are equally suspect. Unless counsel has already been appointed or retained, the police have no basis for selecting an attorney to be present. Where, as here, photographs of the line-up were available to trial counsel, and those photographs afford no basis for attacking the line-up as suggestive, we can see no basis for not following and applying Kirby.
We do not pass on the right of a defendant to representation at a pre-prosecution line-up under those circumstances.
II
On the opening day of trial, defendant, having only the day before expressed confidence in his appointed counsel, sought to discharge him to represent himself and to secure a 60-day postponement for preparation. We can see in the denial of that request no abuse of discretion.
III
The robbery count (count I) had charged enhancements for the use of a deadly weapon, infliction of great bodily injury and infliction of such injury on a victim 60 years of age or older. The verdict has found all three enhancements to be true and enhancements for the first two matters were imposed. In explaining its selection of the upper term, the trial court referred to those matters; it also referred, to the third enhancement (infliction of injury on an elderly man) and, at length to the long criminal record of defendant. While it is true that the same fact may not be used for enhancement and for imposing the upper term, it is clear that the deadly weapon and injury matters were but a small part in the court's selection of the upper term. We can see no reversible prejudice from the casual reference to those matters.
We set forth, in an appendix, the language used by the trial court.
IV
Under the decision in People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, (as modified on April 30, 1980), the determination of defendant's rights (if any) to good time, work time credit are to be determined administratively by the Department of Corrections.
The judgment is affirmed, without prejudice to any administrative action to which defendant may be entitled.
WOODS and MUNOZ , JJ., concur.
Assigned by the Chief Justice of California.
APPENDIX
"THE COURT: Mr. Bustamente has the worst background and disregard for the law that I have seen in a young man in a long time.
"I don't see any rehabilitative methods that I know of to help him.
"I feel that the public has to be protected from Mr. Bustamente. I think the only thing that will change this defendant is a long incarceration, and hopefully he will have mended his ways when he comes out.
"He was convicted of some very vicious crimes. It appears to me the circumstances in aggravation outweigh the circumstances in mitigation.
[168 Cal.Rptr. 301]"Robbery, convicted of the use, dangerous weapon, inflicted great bodily injury upon the victim, an elderly man.
"His prior record shows a pattern of conduct indicating a serious danger to society. All previous attempts to rehabilitate the defendant have failed.
"He was on probation at the time of his offense, he has shown absolutely no remorse for his behavior, no efforts to control his narcotic addiction, he has never worked, he did have a job for one day, he said, he makes his living on the streets by hustling and taking advantage of other people."
[*] See 30 Cal.3d 88 for Supreme Court opinion.