People v. Romero

• Decision Date: 17 April 1969
• Docket Number: Cr. 15391
• Citation: 272 Cal.App.2d 39,77 Cal.Rptr. 175
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Elias Jauregui ROMERO and John Hernandez Ramirez, Defendants and Appellants.

Page 175

77 Cal.Rptr. 175

272 Cal.App.2d 39

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elias Jauregui ROMERO and John Hernandez Ramirez, Defendants and Appellants.

Cr. 15391.

Court of Appeal, Second District, Division 1, California.

April 17, 1969.

Hearing Denied June 18, 1969.

Richard S. Buckley, Public Defender of Los Angeles County, Seymour Weisberg and James L. McCormick, Deputy Public Defenders, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jeffrey T. Miller, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

A jury convicted defendants of robbery (§ 211, Pen.Code) and found that they were armed at the time of the commission of the offense. The trial court ordered stricken that portion of the verdict finding Romero personally to be armed at the time of the robbery. Both defendants appeal from the judgment and order denying motion for new trial. Appeal from the order is dismissed.

Around 1:20 p.m. on October 4, 1967, Mrs. Roach, working at a cash register in Grower's Supermarket, was robbed of $600 in bills; Romero holding a gun told her it was a holdup and Ramirez ordered her to open the cash register drawer. Mr. Siegfried, a clerk, observed the robbery but was unable to definitely identify the robbers.

The following relates to the issue of identification. Having worked for another market and been told to watch for identifying marks in the event of a holdup, Mrs. Roach observed that Romero wore a dark jacket, white dress shirt and felt hat and was about 5 feet 10 and that Ramirez wore a short sleeve maroon shirt buttoned up the front and hanging outside his pants and was 5 feet 10 or 5 feet 11. Ten minutes later she described defendants to police officers--both were of Spanish descent, around 9 feet or 5 feet 10 and Romero had a thin mustache, a thin face, heavy eyes and 'a said look.' Shortly thereafter she talked to Deputy Sheriff Allender and told him that Romero, a male Mexican, was 5 feet 9, weighed between 145 to 150 pounds and had a mustache, and that Ramirez was slightly shorter (1 or 1 1/2 inches) but approximately the same weight; the one holding the gun (Romero) was taller. A report taken by Deputy Sheriff Solar on the same day also contained a description of the two suspects given by Mrs. Roach. ¹

On four separate occasions Mrs. Roach was shown photographs by law enforcement officers. (1) On October 6 around 4 or 5 p.m., before Romero's arrest, Deputy Allender went to the market and showed Mrs. Roach about 10 black and white mug shots from which she identified 'both defendants'; later that evening he arrested Romero in a motel room from which he took a color photograph of a group of men and women seated around a table (Exh. A). Deputy Allender was requested by the defendants to and did produce the photographs he had shown to Mrs. Roach on October 6 and on October 10 or 11; he also brought the color photograph (Exh. A) although Exhibit A was not among the photographs he showed to Mrs. Roach. He testified that at No time did he show the color photograph to her although it had been available to other officers. (2) Three days after the robbery (October 7) two police officers (neither of whom was Deputy Allender) came to Mrs. Roach's home and showed her 8 or 10 photographs from which she made no identification. (3) A day or two later (October 8 or 9) two police officers (neither of whom was Deputy Allender) came to the market and showed Mrs. Roach a series of 8 or 10 black and white mug shots of single individuals out of which she picked two that 'looked like the ones that held (her) up'; and from a color photograph depicting three men and two women seated around a table (Exh. A) she identified the man 'who took the money' (Ramirez) and Romero. (4) On October 10 or 11, Deputy Allender showed Mrs. Roach 10 black and white individual mug shots from which she identified defendants; Exhibit A was not among these photographs.

Mrs. Roach viewed two police lineups--at the first (October 13), there were six men, some of Spanish descent, all dressed in blue, and she recognized Romero in the lineup basing her identification on her observations of Romero during the robbery at the check stand; ² at the second (October 17), out of six men, some of Latin-American descent, she identified both defendants who were not placed together or at extreme ends but situated in positions like 'two and four.' She testified that her observations of defendants at the time of the robbery formed the basis of her identification of them in the lineups.

At the trial Mrs. Roach positively identified the two defendants as the men who held her up, and testified 'I am, absolutely (sure). There is no doubt in my mind.'

On a motion to suppress Mrs. Roach's identification, Deputy Allender testified that prior to the lineups he advised defendants of their constitutional rights and both signed waiver forms; he took Mrs. Roach to both lineups and admonished her that 'a group of people will be brought out upon a stage. We have brought you here to view these people. Possibly the person that held you up is in this group; possibly he is not. We ask you to view this group' and if a person can be identified a card is to be marked. In the first lineup ³ were eight men, all of whom were dark-complexioned, except one with blond hair; in addition to Romero there was one other Mexican-American (Benauvidz); heights ranged from 5 feet 6 to 5 feet 11, four were five feet 7 to 5 feet 8. The second lineup ⁴ consisted of right men of Latin descent, all dark-complexioned and around 5 feet 5 to 5 feet 9.

At the time of trial Romero, a male Caucasian, 22, was 5 feet 8, weighed 130 pounds and had brown hair and blue eyes; Ramirez, a male Caucasian, 27, was 5 feet 6, 140 pounds and had brown hair and brown eyes.

Defendants did not take the stand but various witnesses offered alibi testimony placing them together at a family gathering at the time of the robbery.

Prior to trial defense counsel advised the court that he would call both defendants as witnesses but for the fact that the prosecutor had evidence that each had suffered a prior felony conviction (Romero--forgery; Ramirez--possession of heroin) and, by objection to the proposed evidence should defendants testify, asked the court to exercise its discretion under section 352, Evidence Code to exclude the evidence on the ground that, while admissible for impeachment purposes (§ 788, Evid.Code), its probative value is sufficiently outweighed by the possibility that its admission will create substantial danger of undue prejudice. The trial court overruled the objection on the ground that if defendants testify the prosecution is entitled to impeach their testimony by whatever means are permitted under the Evidence Code which includes raising the prior felony convictions, and that it did not have discretion under section 352 to exclude the evidence.

Appellants claim error in the court's refusal to exercise discretion to exclude the evidence which they say deprived them of the opportunity to testify on their own behalf. They argue that the trial court has broad discretion under section 352, Evidence Code, ⁵ to exclude 'any relevant evidence' (§§ 350, 351, Evid.Code) 'otherwise admissible' (Garfield v. Russell, 251 Cal.App.2d 275, 279, 59 Cal.Rptr. 379), the probative value of which is outweighed by the probability that its admission will create substantial danger of undue prejudice; and that this applies most particularly to evidence of other offenses to prove modus operandi or identity (PEOPLE V. HASTON, 69 CAL.2D ---, ---, 70 CAL.RPTR. 419, 444 P.2D 91)^A and prior felony convictions offered for impeachment purposes. As to the latter we conclude that there is no discretion in the trial court and its ruling was proper. The rule in this state is now (§ 788, Evid.Code) and always has been that any felony conviction is admissible to impeach the credibility of defendant if he takes the stand. (People v. Stewart, 240 Cal.App.2d 1, 7, 50 Cal.Rptr. 26.) In substance, section 788, Evidence Code, simply restates the rule expressed by former section 2051, Code of Civil Procedure, and thereunder, 'For the purpose of attacking the credibility of a witness, it may be shown * * * that he has been convicted of a felony,' the exceptions to which (not here applicable) are contained in subdivisions (a) through (d). Appellants' interpretation of section 788 read with sections 350, 351 and 352 allows for a rule of judicial discretion to exclude such evidence and is predicated primarily on the rule and guidelines developed by the United States Court of Appeal for the District of Columbia in Luck v. United States (1965), 121 U.S.App.D.C. 151, 348 F.2d 763; Brown v. United States (1966) 125 U.S.App.D.C. 220, 370 F.2d 242; and Gordon v. United States (1967) 127 U.S.App.D.C. 343, 383 F.2d 936. ⁶ However, this is not the law in California (People v. Kelly, 261 Cal.App.2d 709, 68 Cal.Rptr. 337). 'It (is) the right of the prosecution to attack appellant's credibility as a witness, and for that purpose to show his prior felony convictions.' (261 Cal.App.2d at p. 712, 68 Cal.Rptr. at p. 340); section 788, which permits the impeachment of a witness in this manner is not permissive and the trial court has no discretion to exclude evidence of a prior felony conviction on the ground here urged. In People v. Kelly, 261 Cal.App.2d 708, 68 Cal.Rptr. 337, appellant claimed error and that 'It was an abuse of discretion' for the trial court to admit his prior felony convictions to impeach his testimony when he became a witness in his own behalf; and, while the court in the form of appellant's assignment of error concluded that 'the trial court did not err or abuse its discretion in receiving this evidence' (p. 713, 68 Cal.Rptr. p. 340) it is clear from the opinion that the court held that no discretion exists and any felony conviction is admissible to...