People v. Stearns

Opinion

FILES, P. J.

On this appeal defendant seeks to attack the fairness of a lineup in which he was identified by a witness as the perpetrator of a homicide.

Defendant was arrested, placed in a lineup, and identified by a witness. He was charged by information with murder (Pen. Code, § 187) and found guilty by a jury of first degree murder. His conviction was reversed on appeal because of errors of law in instructing the jury

(People

v.

Stearns

(1971) 14 Cal.App.3d 178 [92 Cal.Rptr. 69]), and the cause was restored to the superior court calendar.

Subsequently defendant made what counsel called a

“Wade-Gilbert

motion” to suppress certain identification testimony upon the ground that the lineup had been unfair. Testimony was received, going to the lineup issue. This motion was denied on May 31, 1972. A jury trial commenced but a mistrial was declared when the jury became deadlocked. Then, pursuant to a plea bargain, defendant pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. 1), proceedings were suspended, and defendant was placed on probation for three years.

Defendant now appeals “from a plea of guilty and the subsequent sentence” on the ground that his “pretrial motion to suppress the identification of said defendant as the perpetrator of the crime” was erroneously “denied on May 31, 1972 . . . because said identification was forever tainted by

[306]

an unconstitutionally composed lineup.” Defendant’s appeal will be construed as an appeal from the judgment (order granting probation). (Pen. Code, § 1237.)

Counsel for defendant argues that the pretrial ruling with respect to the lineup is reviewable on appeal after a guilty plea by analogy with Penal Code section 1538.5, subdivision (m).

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