I concur in the judgment.
United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], required the presence of counsel at lineups under the frequently articulated theory that adversary criminal proceedings begin not in the courtroom but at the police station. (See, e.g., Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758].) Justice Brennan, writing for the court in Wade, emphasized the importance of the presence of counsel at “critical confrontations,” and firmly declared that “we scrutinize any pretrial confrontation of the accused” (italics in original; 388 U.S. at p. 227 [18 L.Ed.2d at p. 1157]). In addition, the court in Stovall v. Denno (1967) 388 U.S. 293, 298 [18 L.Ed.2d 1199, 1204, 87 S.Ct. 1967], stated unequivocally that “counsel is required at all confrontations” for identification (italics added).
Manifestly “any” pretrial confrontation and “all" confrontations for identification imply no limitation to post-indictment proceedings. Thus our court properly interpreted Wade-Gilbert to apply to every lineup, no matter when held. (People v. Fowler (1969) 1 Cal.3d 335, 342-344 [82 Cal.Rptr. 363, 461 P.2d 643].) It would seem obvious that if an accused is entitled to the protective presence of counsel at a lineup, the chronology of the lineup with respect to other proceedings is of no consequence.
I have heretofore expressed reservations concerning the role which attorneys may assume at lineups and have indicated its limitations (see my dissent in People v. Williams (1971) 3 Cal.3d 853, 858 [92 Cal.Rptr. 6, 478 P.2d 942]). But I have not doubted that Fowler is the law of California and remains so until this court declares otherwise.
I cannot agree with the majority that the plurality opinion in Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877], merely “declined to extend the Wade-Gilbert" rule to pre-indictment lineups (ante, p. 763). It is clear to me that the recent decision materially changed the existing rule by strictly limiting to post-indictment proceedings the previously understood application of Wade-Gilbert and Stovall to “any” and *768“all” confrontations for identification. This represents not mere procedure, but a substantive change in the law. As Judge Sobel states in his book, Eye-Witness Identification (1972), at page 33, “In practical effect the Kirby plurality has not only reversed Wade’s counsel requirement but also Wade’s principal salutary accomplishment.” Indeed, as Sobel points out, now the right to counsel “is afforded the defendant where he least needs it.” Post-indictment lineups are rarely held, and on occasions when they are used it is for the purpose of refreshing identifications previously made. The practicalities are that “The accused’s fate will be decided not in a courtroom but in a showup staged in a police station before formal arrest and without counsel.” (Ibid.)
The lineup in the instant case occurred after Fowler and prior to Kirby. The question before us, therefore, is not whether the federal rule of Kirby is to be interpreted as overruling the state rule of Fowler, but, even if Kirby should be deemed controlling, whether its substantive change is to be given retroactive application so as to affect a previously held lineup.
The answer is found in Stovall v. Denno, supra. Considering whether Wade-Gilbert should be deemed retroactive in application, the court found to do so would seriously disrupt the administration of our criminal laws (388 U.S. at p. 300 [18 L.Ed.2d at p. 1205]). The new requirement, said the court, was “not foreshadowed in our cases” (id. at p. 299 [18 L.Ed.2d at pp. 1204-1205]). If Wade-Gilbert was thus held to be only prospective in application, it would seem that Kirby, adopting a substantive change of law in the same field, should also be considered prospective only.
I repeat that I do not at this time reach the question of whether Kirby compels us to re-examine Fowler. It is not relevant to the issue before us, and is a subject that requires further briefing, argument and study.
Therefore, for the foregoing reasons I conclude that this case is controlled by Fowler. The question remaining is whether the procedures employed here violated Fowler. In my opinion, they did not. Counsel was in fact present throughout the staging of the lineup. His inability to consult with defendant prior to the lineup could in no way affect the basic fairness of the procedure or bis observation thereof. As I pointed out in my dissent in Williams (3 Cal.3d at pp. 859-860), counsel has no right under Wade-Gilbert or Fowler to direct or participate in arranging the lineup. He is merely an observer, and can adequately fulfill that limited role despite lack of previous opportunity for consultation with his client. (People v. Hatfield (1969) 273 Cal.App.2d 745, 748 [78 Cal.Rptr. 805].)
Since there was compliance with the requirements of Fowler, I concur in affirmance of the judgment.