People v. Hughes

California Court of Appeal Mar 28, 1969 No. Crim. 15460Published

Before: Thompson

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Holding. The court held that the pretrial identification procedures were not unfairly suggestive and that the in-court eyewitness identification was sufficient to support the robbery conviction. Furthermore, the court held that the defendant waived his right to challenge the identification procedures by failing to object at the trial court level.

Issues

Whether the pretrial identification procedures were so unfairly suggestive as to deny the defendant due process.
Whether the evidence was sufficient to support the robbery conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Rayburn, when questioned at trial, stated that he became positive in his identification when he saw appellant at the lineup based upon his observation at the time of the robbery and totally without regard to his examination of the photographs.”

“There is in the record the inescapable fact of in-court eyewitness identification. That alone is sufficient to sustain the conviction.”

THOMPSON, J.

Appellant was accused in an information of robbery (Pen. Code, § 211), a felony, and of possessing a dangerous drug (methedrine) in violation of Health and Safety Code section 11910, a misdemeanor. He pleaded not guilty and not guilty by reason of insanity, and subsequently withdrew the latter plea. Appellant was convicted of robbery in the second degree and sentenced to state prison. He was also convicted of drug possession and on that count was sentenced to time already served in the county jail. Appellant does not challenge the misdemeanor conviction, but appeals from the conviction and denial of bis motion for a new trial on the robbery count.

Tbe grounds of appeal are that: (1) unfair pretrial identification of appellant so tainted an in-court identification as to deprive him of due process of law; and (2) the evidence was insufficient to support the robbery conviction.

The record discloses the following facts. Ellis Rayburn, the

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attendant at a Covina service station, was washing the station lot with a hose at about 4:30 a.m. on November 23, 1967. The area was lighted sufficiently to permit recognition of the features of anyone present. Rayburn was approached by a man who drew a gun, cocked it, and said he wanted the money out of the “dog house,” the stand where it was kept. Rayburn handed the cash to the robber.

The next day, Rayburn was shown five photographs by a Covina police officer who told him they were suspects. Rayburn selected appellant’s photograph the first time he went through the pictures, replaced it, and went through them four or five more times. Finally, he again chose appellant’s picture and said he was almost positive that the picture was that of the man who robbed him. Under cross-examination at the trial, he admitted he had “some doubt” as to the robber’s identity when he selected appellant’s photograph.

A few days later, Rayburn selected appellant from a lineup of eight men, all of whom appeared to be of average height and weight, but none of whom were thinner than appellant.

People v. Hughes

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THOMPSON, J.

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