People v. London

KINGSLEY, J.

Defendant and his brother Julius were jointly charged and convicted

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of the crime of robbery in the first degree. A motion for a new trial was made and denied and defendant was committed to the Youth Authority. He has appealed.

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[242]

Defendant was identified at the trial by the two victims of the robbery. It is not, and could not, be here contended that the evidence did not support the verdict.

Neither identification was based on a police lineup: one witness had identified defendant for the first time when she saw him in court; the other witness had selected defendant’s picture from a group of mug shots, but she testified that her in-court identification was based solely on her observation of him in the courtroom. Prior to trial, defendant had moved for an order directing the People to conduct a lineup for possible identification. The motion was denied and its denial is the sole contention now urged on us for reversal.

As counsel points out, an in-court identification of a defendant seated at counsel table is inherently suggestive. Counsel urges that, since the prosecution can compel a defendant to submit to a lineup for the purpose of securing evidence favorable to the People, it is a denial of equal protection and of due process to deny a defendant the opportunity to use the same device with the hope that a. failure to identify him may provide evidence favorable to him. The argument is appealing. In other situations, the courts have required the prosecution to afford a defendant an opportunity to secure evidence potentially favorable to him. In

In re Newbern

(1959) 175 Cal.App.2d 862 [1 Cal.Rptr. 80], it was held to be a denial of due process of law to refuse to allow a person arrested for drunkenness to have a blood test taken at his own expense.

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In

People

v.