Keim

On this appeal from a judgment entered on a jury verdict finding defendant, Rodney Keim, guilty of burglary (Pen. Code, § 459) and rape (Pen. Code, § 261) ( No. 42473), and revoking probation in another matter (No. 38324), the only question is whether the absence of defendant’s counsel at a lineup violated the constitutionally grounded rules enunciated by United States v. Wade, 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 1926 ], and Gilbert v. California, 388 U.S. 263 [ 18 L.Ed.2d 1178 , 87 S.Ct. 1951 ]. We conclude that the judgment must be reversed because the admission at the trial of evidence obtained in violation of these rules was not harmless within the meaning of Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ].

In view of our conclusion and the single issue presented, a brief summary of the pertinent facts will suffice. About 7 a.m. on April 26,1968, the victim, Mrs. Shirley Velasquez, was in her bedroom when she heard a sound in the living room. As she entered the living room to investigate, a man grabbed her, threatened to kill her daughter, and succeeded in raping her. Her assailant wore a mask over the bottom part of his face and had…