Adair

After a nonjury trial, appellant was found guilty of first degree robbery (Pen. Code § 211), as fixed by the court. Proceedings were suspended and appellant ordered placed on probation. His appeal is from that order (Pen. Code § 1237, subd. 1). His only contention is that photographs of him were exhibited to witnesses at a time when defense counsel was not present, thereby depriving him of his constitutional rights.

On the night of May 20, 1967, appellant, at gunpoint, held up Mr. Sousa, manager of a market in Glendale, and obtained the market’s receipts. At the preliminary hearing the manager and two fellow employees, McShane and Jones, identified appellant as the robber. Each had observed appellant for a number of minutes during the holdup and described his height, weight, distinguishing marks and clothing. During the cross-examination of Sousa and Jones at the preliminary hearing, appellant’s counsel asked if photographs had been shown to them by his associate attorney. They stated photographs had been shown and Sousa testified he also was shown photographs by the investigating police officer.

At the trial, the transcript of testimony given at the preliminary hearing…