People v. Davis

California Court of Appeal Mar 20, 1969 No. Crim. 15157Published

Before: Kingsley

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Holding. The court held that a defendant who stipulates to trial procedures, such as the timing of a degree determination or the admissibility of polygraph results, cannot challenge those procedures on appeal. Furthermore, the failure to object to a lineup or the tactical decision not to do so does not constitute reversible error or incompetence of counsel.

Issues

Whether the defendant waived the right to challenge the lineup procedure by failing to object and stipulating to its constitutionality.
Whether trial counsel's failure to object to the lineup procedure constituted ineffective assistance of counsel.
Whether the defendant could challenge the court's consideration of polygraph results after stipulating to their admission.
Whether the court erred by postponing the determination of the degree of the crime until the sentencing hearing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Having failed to object, he cannot raise the issue now.”

“The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence.”

“Defendant cannot on appeal question the propriety of the trial court’s consideration of evidence which he specifically requested it to review.”

[843]

KINGSLEY, J.

Defendant was charged with a violation of Penal Code, section 211, robbery. Defendant pled not guilty; jury trial was waived; defendant was found guilty; by stipulation of all counsel, determination of the degree of the crime was postponed to the probation and sentencing hearing. For purposes of sentencing, a polygraph test of defendant was ordered. Probation was denied. The offense was fixed at first degree robbery and defendant was sentenced to state prison for the term prescribed by law. The appeal is from the judgment.

Dorman Stapp, a route salesman for a baking company, was returning to his truck from making a delivery when a man approached and said, “Can I have it?” Mr. Stapp inquired what the man had said, and the man repeated, “Can I have it?” showing a revolver. Mr. Stapp gave the man between $105 and $109 and the man fled on foot with another man. Mr. Stapp identified defendant as the armed robber in a lineup three days later, and he also identified him at the trial.

Defendant and two witnesses testified that defendant was in Huntington Park at the time the robbery occurred.

It is not (and could not) be contended that, if the identification testimony was properly admitted, the evidence does not support the finding of guilt and of degree.

Defendant complains that counsel was not present during the police lineup. Defendant’s counsel below failed to object to the lineup procedure, the lineup and trial in the instant ease took place several months after the Supreme Court’s decisions on the presence of counsel at the lineup.

(United States

Wade

(1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926];

Gilbert

California

(1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]; see also

People v. Davis

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KINGSLEY, J.

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