People v. Fairley

Opinion

ARNE, J.* This is an appeal from a conviction of robbery (Pen. Code, § 211) and a finding by the jury that in the commission of one of the counts of robbery defendant used a gun, in violation of sections 12022.5 and 1203.06, subdivision (a)(1), of the Penal Code.

At about 9:45 p.m. on November 13, 1980, Eva Palmer, her uncle, Archie Durham, and a friend, Charles Forster, were walking on University Avenue in Palo Alto, California, on their way to a Mexican restaurant. Near the restaurant Palmer and Forster, who were walking together, passed a black man walking in the opposite direction. The [185]black man accosted Durham, who was behind Palmer and Forster, poked a gun into Durham’s side and demanded his money. Durham handed over three silver dollars and a cigarette lighter with his initials on it. The assailant took the items and ran up a nearby alley with Durham following in unsuccessful pursuit. Palmer and Forster went into the restaurant to call the police. Sheriffs deputies responded and took a physical description of the robber from each of the three.

Later the same night, at about 11 p.m., William Morgan was robbed as he walked to his car from the Bachelor’s Quarters, a club near the location of the robbery of Archie Durham. The robber took a small bag containing Morgan’s wallet, some credit cards, a small amount of cash, and some personal articles. The police were called again and given a physical description of the robber.

Appellant was arrested at about midnight of the same day. When he. was booked, an automatic pistol, a cigarette lighter, three silver dollars and four $1 bills were found on his person.

About a week after appellant’s arrest a physical lineup was held at which Morgan and Palmer identified appellant from among six subjects. Durham identified another individual as his assailant and Forster did not attend the lineup.

A preliminary examination was held on December 1, 1980, at which Durham was called to testify. Later, at appellant’s trial, he was questioned by both the prosecution and defense concerning his selection of a person other than appellant in the physical lineup. And, while under cross-examination, Durham testified that when he saw appellant at the preliminary examination he had recognized appellant as the man who had robbed him.

At the time of the trial Forster appeared and testified to the fact that the district attorney or an investigator (or both) had told him to enter and sit in the courtroom on the first day of the trial. And, if he saw someone whom he recognized, he was to stand up and leave the courtroom. Forster did as instructed and when appellant entered the courtroom, he (Forster) stood up and walked out of the courtroom. During his subsequent testimony he identified appellant as the man who had robbed Durham. Testimony identifying the appellant was also given by Palmer, Durham and Morgan.