Keel

Defendant was convicted of burglary and sentenced to state prison. The only question posed by appellant is whether his conviction is constitutionally defective because the record affords no evidence whatsoever that a lineup, at which the victim of the burglary identified defendant, was fair. Neither, for that matter, was there any evidence that the lineup was unfair. The question raised, then, is not whether in the event of conflicting evidence or conflicting inferences the People or the defendant have the burden of persuasion on the question of fairness. (Evid. Code, § 115.) Rather, it is a problem of who has the burden of going forward with some evidence on the issue. (Evid. Code, § 110.) However, for reasons stated below, we do not reach the issue. The burglary in question was committed February 8, 1967. The preliminary hearing at which the victim testified concerning the lineup was held on March 27. The trial started on June 21, 1967. On that date a stipulation that the transcript of the preliminary hearing could be considered as evidence was entered into. The trial then resumed on July 27 and concluded on August 3.

Stovall v. Denno, 388 U.S. 293, 299-302 [ 18 L.Ed.2d 1199,…