Stearns

On August 27, 1970, an opinion was filed by this court in this case. Thereafter the court granted respondent’s petition for rehearing. The following is the opinion upon rehearing.

By information the defendant was accused of the murder of Kenneth A. Lindstrand, the crime being alleged to have occurred on or about October *181 29, 1967. (Pen. Code, § 187.) In a trial by jury he was found guilty of murder in the first degree and the penalty was fixed as imprisonment in the state prison for life. His motion for a new trial was denied as was his motion for modification of the determination as to the nature of the offense. (Pen. Code, § 1181.) Probation was denied. The defendant was sentenced to be punished by imprisonment in the state prison for the term of his natural life. He has appealed from the judgment. He has also attempted to appeal from the order denying his “motion for a new trial and for reduction of sentence,” but that order is not separately appealable and the defendant’s appeal therefrom must be dismissed. (People v. Ing, 65 Cal.2d 603, 614 [ 55 Cal.Rptr. 902 , 422 P.2d 590 ].)

The defendant is represented on this appeal by the same attorney who represented him…

I concur in the reversal of the judgment. I do not, however, agree with that portion of the opinion of the majority which holds that the lineup was not constitutionally inadequate and that the failure of the defendant’s attorney who was present at the lineup to make any objection at that time, pointing out the claimed unfairness, amounted to a waiver of the claim of constitutional inadequacy.

The lineup occurred about a year and a half after the homicide. At the hearing in the superior court on the issue of the fairness of the lineup, three photographs were introduced which showed the composition of the lineup. An examination of those photographs compels the conclusion that of the nine men in the lineup, in which the defendant was in the middle, none bore a reasonably similar physical resemblance to the defendant except possibly the man who stood immediately to the left of him. In my opinion, in the absence of countervailing evidence those photographs established as a matter of law that the lineup was unfair.

It is true that after the motion relating to the lineup was denied by the court, no further objection of the same nature was made in the course of the trial before the…

On August 27, 1970, an opinion was filed by this court in this case. Thereafter the court granted respondent's petition for rehearing. The following is the opinion upon rehearing.

By information the defendant was accused of the murder of Kenneth A. Lindstrand, the crime being alleged to have occurred on or about October 29, 1967. (Pen. Code, § 187.) In a trial by jury he was found guilty of murder in the first degree and the penalty was fixed as imprisonment in the state prison for life. His motion for a new trial was denied as was his motion for modification of the determination as to the nature of the offense. (Pen. Code, § 1181.) Probation was denied. The defendant was sentenced to be punished by imprisonment in the state prison for the term of his natural life. He has appealed from the judgment. He has also attempted to appeal from the order denying his "motion for a new trial and for reduction of sentence," but that order is not separately appealable and the defendant's appeal therefrom must be dismissed. ( People v. Ing, 65 Cal.2d 603, 614 [ 55 Cal. Rptr. 902 , 422 P.2d 590 ].)

The defendant is represented on this appeal by the same attorney who…