People v. Rist

• Citation: 545 P.2d 833,127 Cal.Rptr. 457,16 Cal.3d 211
• Decision Date: 20 February 1976
• Docket Number: Cr. 18651
• Court: United States State Supreme Court (California)
• Parties: , 545 P.2d 833 The PEOPLE, Plaintiff and Respondent, v. Charles Thomas RIST, Defendant and Appellant.

Page 457

127 Cal.Rptr. 457

16 Cal.3d 211, 545 P.2d 833

The PEOPLE, Plaintiff and Respondent, v. Charles Thomas RIST, Defendant and Appellant.

Cr. 18651.

Supreme Court of California,

In Bank.

Feb. 20, 1976.

Rehearing Denied March 31, 1976.

Dennis L. Cava, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., LeRoy C. Preminger, Howard J. Schwab and Alexander W. Kirkpatrick, Deputy Attys. Gen., for plaintiff and respondent.

Louis P. Bergna, Dist. Atty. (Santa Clara), and Albert C. Bender, Deputy Dist. Atty. as amici curiae on behalf of plaintiff and respondent.

WRIGHT, Chief Justice.

Charles Thomas Rist appeals from a judgment upon a jury conviction of robbery of the first degree (Pen.Code, §§ 211, 211a) and a finding that he had used a firearm in the commission of the robbery (Pen.Code, § 12022.5). He was sentenced to state prison for the term prescribed by law to run concurrently with a prison term already being served. We agree with defendant's contention that the trial court abused its discretion in denying his motion to exclude evidence of a recent prior robbery conviction offered for the purpose of impeaching defendant's credibility and, accordingly reverse the judgment. (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.)

Carol Ann Supple was employed at the counter in the Pioneer Chicken Restaurant in Cerritos. Around 9:15 p.m. on September 30, 1973, defendant approached the counter and demanded of Carol that she 'Give me the money.' He displayed momentarily a revolver which was concealed under his shirt, and directed that Carol go to the cash register and give him the 'big bills underneath, too.' When she had given him approximately $150, defendant ran from the restaurant. Two other employees, working in the back room of the establishment, did not observe the incident. Carol noted several distinctive characteristics of defendant's dress and appearance, which she subsequently related to the police. ¹

Nearly three weeks later, on October 17, Police Sergeants Hagthrop and Endersby showed Carol seven photographs of suspects. The photographs, arranged in a line, were all of white males. Carol unhesitatingly chose a photograph of defendant and initialed it. ² Approximately one week after the photographic identification Carol picked defendant out of a lineup of six men, four of whom were taller than defendant and one of whom was similar to defendant in height. ³ She testified without contradiction that her identification of defendant at trial was the result of her memory of the robbery, not of the photographic or lineup identifications.

We consider initially a contention that inconsistencies in Carol's testimony were such as to create 'a very serious doubt as to her veracity, memory and perceptive abilities,' and that therefore 'her in-court identification was not based upon an independent source.' ⁴ The contention is without merit. The specific instances to which defendant refers have little or no bearing on the reliability and accuracy of Carol's identification of him. Carol had an unobstructed view of defendant for at least three minutes during the robbery and was thus able to form a detailed impression of his appearance. The few arguable inconsistencies to which defendant points cannot be said to render Carol's otherwise firm and clear testimony unreliable as a matter of law. Confusion, or lack of clarity and positiveness in a witness' identification testimony goes to the weight, not the admissibility of the testimony. (People v. Williams (1973) 9 Cal.3d 24, 37, 106 Cal.Rptr. 622, 506 P.2d 998; People v. Gonzales (1968) 68 Cal.2d 467, 472, 67 Cal.Rptr. 551, 439 P.2d 655.) Defendant's identification was thus a question for the trier of fact and having been resolved on substantial evidence must be sustained on appeal.

Defendant also contends that he was entitled to the presence of counsel at the photographic identification session of October 17. We have consistently rejected the contention that the constitutional right to counsel extends to photographic identification procedures (People v. Rhinehart (1973) 9 Cal.3d 139, 153, 107 Cal.Rptr. 34, 507 P.2d 642; People v. McInnis (1972) 6 Cal.3d 821, 827, 100 Cal.Rptr. 618, 494 P.2d 690; People v. Lawrence (1971) 4 Cal.3d 273, 275, 279--280, 93 Cal.Rptr. 204, 481 P.2d 212), as has the United States Supreme Court (United States v. Ash (1973)413 U.S. 300, 321, 93 S.Ct. 2568, 37 L.Ed.2d 619). Nor is there a constitutional denial based on due process considerations in the absence of a showing of overall unfairness in a photographic identification session. (People v. Lawrence, supra, 4 Cal.3d 273, 280, 93 Cal.Rptr. 204, 481 P.2d 212.) As the photographs from which Carol identified defendant were available at trial, defense counsel had adequate opportunity to demonstrate the identification method's potential for error. (Id., at pp. 278--279, 93 Cal.Rptr. 204, 481 P.2d 212.) We thus reject defendant's claim of constitutional denial based on the lack of counsel at the photographic identification.

Defendant further urges that the procedures followed at the photographic and the lineup identifications were so unduly suggestive as to have produced a substantial likelihood of irreparable misidentification. (See Foster v. California (1969) 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402; Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; see also Neil v. Biggers (1972) 409 U.S. 188, 196--197, 93 S.Ct. 375, 34 L.Ed.2d 401.) The record discloses no such probability of erroneous photographic identification. There is no evidence that defendant's photograph was singularly marked (see People v. Caruso (1968) 68 Cal.2d 183, 187--188, 65 Cal.Rptr. 336, 436 P.2d 336), that the photographs were arranged in a suggestive fashion, or that the officers said anything to influence Carol's choice. The fact that the words 'Police Department, Anaheim, California' appeared on the bottom of defendant's photograph is of little significance in view of the fact that the same legend was printed in the same location on all seven photographs. The record is barren of evidence to support the claim that 'a great disparity existed in the appearance between the (defendant) and the other persons shown in the photos.' In any event, Carol's testimony unequivocally reflected an ample opportunity to observe defendant's features during the robbery (see Simmons v. United States, supra, 390 U.S. 377, 385, 88 S.Ct. 967; People v. Williams, supra, 9 Cal.3d 24, 37, 106 Cal.Rptr. 622, 506 P.2d 998; cf. People v. Bisogni (1971) 4 Cal.3d 582, 587, 94 Cal.Rptr. 164, 483 P.2d 780), and the photographic identification had negligible effect on her in-court identification of defendant. ⁵

There is likewise no support in the record for the contention that the lineup was unfairly conducted. Defendant, apparently referring to photographs taken at the lineup describes each of the six suspects and concludes that 'there was an extreme disparity in appearance between (himself) and the other persons at the lineup.' The record fails to support such a claim. Aside from the fact that defendant may have been the shortest member of the lineup there is no evidence that he differed in appearance from the other members. ⁶ Finally, there is evidence that Carol's incourt identification of defendant had a source independent of the lineup, viz., her opportunity to observe him during the robbery. (People v. Williams, supra, 9 Cal.3d 24, 37, 106 Cal.Rptr. 622, 506 P.2d 998; In re Hill, supra, 71 Cal.2d 997, 1006, 80 Cal.Rptr. 537, 458 P.2d 449.) Defendant's contention that either or both the photographic and lineup identifications were unduly suggestive is thus without merit.

We turn to the contention that the trial court abused its discretion in ruling admissible for the purpose of impeachment defendant's 1973 conviction for robbery. Defendant moved at the commencement of trial to exclude evidence of such prior convictions as well as evidence of 1971 convictions for forgery of a credit card and possession of marijuana. The court ruled that the robbery but not the other convictions was admissible to impeach defendant. ⁷ Defendant elected not to testify at trial.

In People v. Beagle, supra, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 (see also People v. Antick (1975) 15 Cal.3d 79, 97--99, 123 Cal.Rptr. 475, 539 P.2d 43), we consider the interaction of Evidence Code sections 352 and 788 ⁸ as they relate to prior felony convictions offered to impeach a witness, especially when the witness is the defendant in a criminal trial. We concluded that section 352 invests the trial court with discretion to exclude evidence of a prior felony conviction when its probative value is outweighted by the risk of undue prejudice which its admission would occasion. (Id., 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) Among the factors which the court must weigh in deciding whether a witness' prior felony conviction should be admitted for the purpose of impeachment, are the conviction's bearing on honesty and integrity, the temporal propinquity or remoteness of the conviction, and the similarity between the conduct upon which the prior conviction rested and the conduct for which the accused is on trial when he is the witness whose impeachment is sought.

A jury which is made aware of a similar prior conviction will inevitably feel pressure to conclude that if an accused committed the prior crime he likely committed the crime charged. The exclusion of a similar prior conviction is especially warranted when the defendant has also suffered a prior conviction or convictions for conduct Dissimilar to that for which he is on trial, as the dissimilar prior crimes are available as grounds of impeachment and exclusion of the similar one is the wiser path. (Id., at...