Opinion
BEACH, J.—
Nature of Case:
Defendant appeals from the judgment of conviction after a jury found him guilty of robbery and using a firearm in the commission thereof. Appellant primarily contends that the trial court erred in admitting evidence of a lineup identification where he appeared without counsel.1
Facts:
On April 13, 1977, at about 8:30 a.m., Dorris Smith (the victim) was walking down Florence Avenue between Hoover and Vermont Streets in [687]*687the City of Los Angeles. She was approached by a man she subsequently identified as appellant who engaged her in conversation. She stated she was looking for a job; the man advised her his sister had just obtained employment at a nursing home and that he would drive her there. Dorris accepted, entered a blue (turquoise) Rambler station wagon with a white top, and was driven to an alley oif Slauson Avenue and 58th Street. The man got out of the car, walked to a fence and seemed to beckon toward a window as if to encourage someone to join him but there was no response. After some minutes, Dorris indicated to the pian she would go on alone. The man, however, reentered the car and drove it adjacent to a garage, stopping it in such fashion Dorris could not open the door on her side of the car, removed a gun from under the dashboard, pointed it at the victim’s head close enough to touch it, and demanded the victim’s money, purse, ring, and watch. When the valuables demanded were delivered to him, the man permitted Dorris to leave. Within a few minutes, Dorris called the police. Later the same day she made a written report of the incident which included a description of her assailant. The encounter described above lasted between 20 to 30 minutes, during which Dorris from time to time directly confronted her assailant visually, both frontally and in profile except during the moments he held the gun to her head, when she was too frightened to look. She observed he was dark, a “few inches” taller than five feet six and one-half inches, and had a two-inch scar on his left forearm. She indicated to police officers in her report made April 13 that a .38 caliber revolver shown to her by them looked “like the same type of gun” used in the robbery.
On the following day she saw what she thought was the same Rambler in which she was robbed, hailed a passing policeman and showed him a copy of the crime report she had made. The police officer put the Rambler under surveillance and ultimately stopped it and questioned appellant, who was its driver. The information comprising appellant’s name, address, and who was the owner of the car, thus obtained, was relayed to another officer who, acting upon it, obtained a photograph of appellant. On or about April 25, 1977, the photograph of appellant was, with five others, shown to Dorris, who picked out appellant as the man who had robbed her. On May 19, 1977, a little more than three weeks later, other police officers armed with a warrant naming appellant proceeded to appellant’s residence, stated they were there to arrest appellant and were granted entry by appellant’s sister. They discovered appellant hiding under a bed. On May 23, 1977, appellant was included in a police lineup. He was identified by Dorris as the perpetrator of the [688]*688crime.2 Appellant was not advised of his right to counsel before the lineup or at any time; he did not waive the right to counsel and he was not represented by counsel.
Appellant is six feet one inch or six feet two inches tall, darker than the victim and had a burn mark on his left forearm. Three .38 caliber bullets were found in one of his shoes. The three bullets were not nor was the .38 Smith and Wesson revolver which Dorris identified at the police station as similar, introduced in evidence, although they were referred to, nor was any revolver appellant was charged with using. Appellant claimed to have been shopping with his fiancee and some friends on the date of the robbery. However, he had earlier told police he was then driving his mother to the hospital. He denied he had a gun or owned a gun. None of the property of which Dorris was robbed was traced to or found with appellant. He maintained his hiding under the bed when arrested was due to his fear he was being sought in connection with an outstanding traffic warrant and that the bullets found belonged to a friend. He was the only witness for the defense.
Issues:
1. Was there an unreasonable delay?
2. Was the admission into evidence of a lineup identification where the defendant appeared without an attorney prejudicial error requiring réversal?
Our Holding:
We answer no to both of the above questions and we affirm the judgment of the trial court.
Discussion:
1. There was no unnecessary delay.
Appellant was arrested on Thursday, May 19, about 7:30 a.m. He was arraigned on Monday, May 23. Penal Code section 825 requires that an arrested person be taken before a magistrate within two days. At bench [689]*689the statutory two days did not expire until the end of Monday, May 23. Saturday and Sunday are excluded in calculating the time. (Pen. Code, § 825.) This is not disputed by appellant. It follows that appellant was arraigned within the statutory time period allowed. Nonetheless appellant claims, undue delay. He argues the police could have taken him before a magistrate before the expiration of the two days (appellant and respondent use the phrase “48 hours”). The statute does not support appellant. It allows 48 hours within which to take the arrested person before the magistrate. No “unnecessary delay” is presumed merely because a defendant claims such delay. It would render the statute meaningless if the mere claim of a defendant created a presumption of delay. No statute and no case authority cited to us, casts upon the People the burden of coming forward in each case to demonstrate why an arraignment was not held prior to the time of the actual arraignment. The cases cited by appellant do not support his contention. The case of People v. Williams, 68 Cal.App.3d 36 [137 Cal.Rptr. 70], primarily relied upon by appellant is totally inapplicable. There the arraignment was beyond the statutory time of 48 hours. People v. Powell, 61 Cal.2d 32 [59 Cal.Rptr. 817, 429 P.2d 137], does not aid appellant. The dicta simply indicates that an unreasonable delay might occur within the 48 hours. But appellant has demonstrated no such case here.
On the other hand, using the time allowed to prepare and evaluate a case before filing a complaint is not prohibited. Where a delay within the 48-hour period occurs in order to evaluate a case the delay is not unnecessary. (Stanley v. Justice Court, 55 Cal.App.3d 244, 250 [127 Cal.Rptr. 532]; People v. King, 270 Cal.App.2d 817, 822-823 [76 Cal.Rptr. 145]; People v. Ross, 236 Cal.App.2d 364, 368-369 [46 Cal.Rptr. 41].) There may be other valid reasons for not arraigning an arrested person immediately upon arrest and for using all or the greater part of the 48 hours allowed. Some of those reasons may include study and investigation to make certain that grounds exist to support a criminal complaint. (People v. King, supra, 270 Cal.App.2d at p.
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Opinion
BEACH, J.—
Nature of Case:
Defendant appeals from the judgment of conviction after a jury found him guilty of robbery and using a firearm in the commission thereof. Appellant primarily contends that the trial court erred in admitting evidence of a lineup identification where he appeared without counsel.1
Facts:
On April 13, 1977, at about 8:30 a.m., Dorris Smith (the victim) was walking down Florence Avenue between Hoover and Vermont Streets in [687]*687the City of Los Angeles. She was approached by a man she subsequently identified as appellant who engaged her in conversation. She stated she was looking for a job; the man advised her his sister had just obtained employment at a nursing home and that he would drive her there. Dorris accepted, entered a blue (turquoise) Rambler station wagon with a white top, and was driven to an alley oif Slauson Avenue and 58th Street. The man got out of the car, walked to a fence and seemed to beckon toward a window as if to encourage someone to join him but there was no response. After some minutes, Dorris indicated to the pian she would go on alone. The man, however, reentered the car and drove it adjacent to a garage, stopping it in such fashion Dorris could not open the door on her side of the car, removed a gun from under the dashboard, pointed it at the victim’s head close enough to touch it, and demanded the victim’s money, purse, ring, and watch. When the valuables demanded were delivered to him, the man permitted Dorris to leave. Within a few minutes, Dorris called the police. Later the same day she made a written report of the incident which included a description of her assailant. The encounter described above lasted between 20 to 30 minutes, during which Dorris from time to time directly confronted her assailant visually, both frontally and in profile except during the moments he held the gun to her head, when she was too frightened to look. She observed he was dark, a “few inches” taller than five feet six and one-half inches, and had a two-inch scar on his left forearm. She indicated to police officers in her report made April 13 that a .38 caliber revolver shown to her by them looked “like the same type of gun” used in the robbery.
On the following day she saw what she thought was the same Rambler in which she was robbed, hailed a passing policeman and showed him a copy of the crime report she had made. The police officer put the Rambler under surveillance and ultimately stopped it and questioned appellant, who was its driver. The information comprising appellant’s name, address, and who was the owner of the car, thus obtained, was relayed to another officer who, acting upon it, obtained a photograph of appellant. On or about April 25, 1977, the photograph of appellant was, with five others, shown to Dorris, who picked out appellant as the man who had robbed her. On May 19, 1977, a little more than three weeks later, other police officers armed with a warrant naming appellant proceeded to appellant’s residence, stated they were there to arrest appellant and were granted entry by appellant’s sister. They discovered appellant hiding under a bed. On May 23, 1977, appellant was included in a police lineup. He was identified by Dorris as the perpetrator of the [688]*688crime.2 Appellant was not advised of his right to counsel before the lineup or at any time; he did not waive the right to counsel and he was not represented by counsel.
Appellant is six feet one inch or six feet two inches tall, darker than the victim and had a burn mark on his left forearm. Three .38 caliber bullets were found in one of his shoes. The three bullets were not nor was the .38 Smith and Wesson revolver which Dorris identified at the police station as similar, introduced in evidence, although they were referred to, nor was any revolver appellant was charged with using. Appellant claimed to have been shopping with his fiancee and some friends on the date of the robbery. However, he had earlier told police he was then driving his mother to the hospital. He denied he had a gun or owned a gun. None of the property of which Dorris was robbed was traced to or found with appellant. He maintained his hiding under the bed when arrested was due to his fear he was being sought in connection with an outstanding traffic warrant and that the bullets found belonged to a friend. He was the only witness for the defense.
Issues:
1. Was there an unreasonable delay?
2. Was the admission into evidence of a lineup identification where the defendant appeared without an attorney prejudicial error requiring réversal?
Our Holding:
We answer no to both of the above questions and we affirm the judgment of the trial court.
Discussion:
1. There was no unnecessary delay.
Appellant was arrested on Thursday, May 19, about 7:30 a.m. He was arraigned on Monday, May 23. Penal Code section 825 requires that an arrested person be taken before a magistrate within two days. At bench [689]*689the statutory two days did not expire until the end of Monday, May 23. Saturday and Sunday are excluded in calculating the time. (Pen. Code, § 825.) This is not disputed by appellant. It follows that appellant was arraigned within the statutory time period allowed. Nonetheless appellant claims, undue delay. He argues the police could have taken him before a magistrate before the expiration of the two days (appellant and respondent use the phrase “48 hours”). The statute does not support appellant. It allows 48 hours within which to take the arrested person before the magistrate. No “unnecessary delay” is presumed merely because a defendant claims such delay. It would render the statute meaningless if the mere claim of a defendant created a presumption of delay. No statute and no case authority cited to us, casts upon the People the burden of coming forward in each case to demonstrate why an arraignment was not held prior to the time of the actual arraignment. The cases cited by appellant do not support his contention. The case of People v. Williams, 68 Cal.App.3d 36 [137 Cal.Rptr. 70], primarily relied upon by appellant is totally inapplicable. There the arraignment was beyond the statutory time of 48 hours. People v. Powell, 61 Cal.2d 32 [59 Cal.Rptr. 817, 429 P.2d 137], does not aid appellant. The dicta simply indicates that an unreasonable delay might occur within the 48 hours. But appellant has demonstrated no such case here.
On the other hand, using the time allowed to prepare and evaluate a case before filing a complaint is not prohibited. Where a delay within the 48-hour period occurs in order to evaluate a case the delay is not unnecessary. (Stanley v. Justice Court, 55 Cal.App.3d 244, 250 [127 Cal.Rptr. 532]; People v. King, 270 Cal.App.2d 817, 822-823 [76 Cal.Rptr. 145]; People v. Ross, 236 Cal.App.2d 364, 368-369 [46 Cal.Rptr. 41].) There may be other valid reasons for not arraigning an arrested person immediately upon arrest and for using all or the greater part of the 48 hours allowed. Some of those reasons may include study and investigation to make certain that grounds exist to support a criminal complaint. (People v. King, supra, 270 Cal.App.2d at p. 822.) A delay which is occasioned by the conscientious performance of police and which is utilized for the purposes of clerical and administrative needs and not used solely for the purpose of eliciting damaging statements from the accused is not an unreasonable delay.
2. The absence of counsel at the lineup was not prejudicial error.
Appellant and respondent both argue whether or not the right to assistance of counsel under the Fourteenth and Sixth Amendments [690]*690accrues after defendant has been arrested but before a formal complaint has been filed against him in court. The dissent articulates the view that the interpretation of the Wade-Gilbert rule3 in People v. Fowler, 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], compels the presence of counsel at a lineup even if formal accusatory proceedings have not yet been started, as for example by the filing of a complaint with the preliminaiy magistrate. While that view may be supportable, on the other hand, Kirby v. Illinois, 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877], holds that the Wade-Gilbert rule requiring counsel or a valid waiver thereof does not apply when such lineups are held prior to the initiation of formal judicial proceedings. In affirming a judgment of conviction based upon evidence of a preaccusatory lineup, the court in People v. Chojnacky, 8 Cal.3d 759 [106 Cal.Rptr. 106, 505 P.2d 530], followed the rule as expressed in Kirby. The dissent here and the dissent in Chojnacky indicate some doubt that the case so holds. The express statement of the majority in Chojnacky seems to indicate that Chojnacky did adopt the Kirby rule. The court there said “In view of the conclusion herein that the Wade-Gilbert exclusionary rule is inapplicable since the instant lineup preceded the initiation of judicial criminal proceedings, it is unnecessary to reach the issue whether defendant had effective assistance of counsel at the lineup.” (People v. Chojnacky, supra, 8 Cal.3d at p. 763, fn. 2.) The court in Chojnacky also said: “Before Kirby this court in People v. Fowler, 1 Cal.3d 335 . . . held that the Wade-Gilbert rules were applicable to a formal pre-accusation lineup, and several California pre-Kirby decisions relied upon the conclusion in Fowler. [Citations.] Fowler and the other California decisions were based on the federal Constitution and are not controlling in view of the decision rendered by the United States Supreme Court in Kirby. At least one California post-Kirby decision has followed the rule in Kirby (People v. Faulkner, 28 Cal.App.3d 384, 390 . . . .)
“Since here the lineup preceded the initiation of judicial criminal proceedings, the Wade-Gilbert per se exclusionary rule is inapplicable, and defendant’s previously recited claims of error based on that rule therefore cannot be upheld. No claim is made, nor does it appear, that the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification.” (Chojnacky, supra, 8 Cal.3d at pp. 764-765.) Although the present dissent further seeks to explain that People v. Chojnacky, supra, does not adopt the Kirby rule in California, we need not here debate that the Kirby rule was or was not adopted by Chojnacky nor need we advocate which view is-the better. For the purpose of [691]*691decision here we will assume the view of our dissenting colleague, that where an identification is sought to be' made, counsel for the suspect is required at a “pre-accusatory in-person” lineup. Even assuming such a rule, we hold that the admission of the evidence of the identification of defendant at the in-person lineup under the circumstances of this case was harmless error beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; Moore v. Illinois, 434 U.S. 220 [54 L.Ed.2d 424, 98 S.Ct. 458].)
In the matter at bench there was strong, positive, and direct evidence abundantly sufficient in amount, character, and reliability to prove the guilt of appellant beyond a reasonable doubt. That evidence was totally independent of the lineup identification of appellant by the victim. In summary, that evidence is as follows: On April 13, the victim spoke to the defendant directly in a friendly unexcited manner. The conversation and confrontation face to face in a friendly manner lasted for the greater part of the 20 to 30 minutes of the total encounter with the appellant. Victim saw appellant closely in full daylight face to face. She saw the scar on his arm. It was in the same place and on the same (left) arm as was seen by the officer and as was seen by the jury at trial. She saw the letters of at least R and D at the end of the tattooed name Bernard which was on her assailant’s arm and which was on appellant’s arm. She saw this tatoo just beneath the shirt sleeves of her assailant which were rolled in the same manner as appellant wore his sleeves at the trial. After she was robbed, she immediately phoned the police and described the above details. She also immediately gave a description of the Rambler station wagon and the color of the car. In the immediate description that she gave to the police she included the assailant’s color, approximate height, and scar, all of which matched that of appellant.
The next day she saw the same car and immediately notified two nearby officers. The car was traced and appellant was identified as the driver of the car on that day. Appellant when arrested continued to fit the description including the scar, his height, the tatoo, and at the time of his arrest, he was in possession of three .38 caliber bullets. There was not the slightest shred of evidence that either on April the 25th or at the in-person identification there was any difficulty on the part of the victim identifying either the photo of appellant or appellant personally. There was no evidence that there was any suggestion, hint, or coaching.
As a result there is no evidence that her in-court identification of appellant was dependent upon or in any way tainted by any improper prior identification.
[692]*692Contrasted with cases in which the observation of a defendant may be suspicious, the case at bench shows that most of the view of the defendant occurred during a friendly, unemotional, and casual conversation. The victim during the time of casual conversation was not excited, she was not in fear for her life or her safety, she was in no huriy, there was no other distracting commotion, and she was not in any physical or mental disability or distress.
Additional reasons why the evidence of the identification of appellant can be relied upon as worthy of belief are the following: the observation was while appellant was present in the daylight. It was not of some fleeing, obscure subject at night; there were no other victims to whom to give testimonial support or whose testimony needed bolstering or who spurred the imagination of the victim. This was a person-to-person encounter of extended duration. There was no need to confirm a guess. The problem of collusion among identifying witnesses or victims was absent. These are but a few of the items which differentiate this case from others in which the identification is critical yet problematic.
The evidence totally apart from the in-person identification overwhelmingly showed that appellant committed the crime. Although the description and identification first came from the lips of the victim alone it was corroborated by (1) the fact that the make, model, and color of car used by the assailant and described by the victim was uncontrovertedly traced to appellant as the driver and the appellant fit the given description of the assailant in color, height, scar, tattoo, and wearing of shirt sleeves; (2) the assailant’s photograph was pointed out by victim without hesitation, hint, or coaching. Both of these things occurred long before the lineup.
The judgment is affirmed.
Fleming, J., concurred.