People v. Armstrong

KINGSLEY, J.

Defendant was charged with a violation of Penal Code, section 261, subdivision 3, in count I, and a violation of Penal Code, section 288a in count II. Prior convictions were alleged and admitted. . Defendant pled not guilty. Defendant was tried by a jury and found guilty on both counts. He was sentenced to state prison on each count. He filed a notice of appeal in propria persona.

1

The victim was at a laundromat on July 20, 1967, washing clothes. She had her three-week old baby with her. Defendant entered, approached the victim and told her that she must make love to him or he would rape her. The victim tried to get away, defendant threatened to strike her and he forced her to the floor. He then forced the victim to commit an act in violation of Penal Code, section 288a, and then defendant had sexual intercourse with the victim. During the entire occurrence the victim was fearful for the safety of herself and her child.

The laundromat was well lighted and the victim could identify her attacker.

The victim returned home, her landlady called the police and at the hospital Dr. Field took a vaginal smear which he found to contain human spermatozoa. Dr. Field also noted a superficial vaginal tear and bruised tissue.

Two days after the incident the victim identified defendant at a police lineup.

Mr. Hunter testified that he observed defendant in the Rendezvous Bar (which is located near the scene of the attack) at approximately 8 :30 or 9 p.m., the evening of the attack. Mr. Hunter also stated that the victim entered the Rendezvous Bar the same evening, looking for her husband.

Defendant argues that he was denied counsel at the lineup and that he was sentenced in violation of Penal Code, section 654.

[326]

I

Defendant claims that he was denied the right to counsel at the police lineup, and that he was entitled to counsel by virtue of the rule of

United States