"On September 3, 1973 (Labor Day), at approximately 9:10 p. m., a Kentucky Colonel Fried Chicken shop located on Rosecrans Avenue in San Diego was robbed by a male individual armed with a loaded revolver. After having been on the premises for about five minutes, the robber departed with approximately $480. All five employees of the establishment identified defendant as the robber.
"The manager of the shop, Jackie Ray Briddell, was shown a series of photographs by
the police about two weeks after the robbery. He had noted the robber wore a moustache, yet he selected the photograph of defendant which showed him cleanshaven. He did not remember any chin hair, and made no mention of a birthmark; he said defendant wore a plaid jacket during the robbery.
"The manager saw a revolver in defendant's hand, and saw bullets in the cylinder. He had seen defendant in November in a court proceeding and then recognized him as the robber. His in-court identification of defendant as the robber was positive.
"Marsha Heidt, a sales clerk, in the shop, at a distance of a few feet, saw the robber with a pistol that had a cylinder in which she saw bullets. She said the robber had a drooping moustache, a few days' growth on his chin, and an irregular reddish birthmark on his cheek.
"Within an hour she and three other witnesses were asked to draw a pencil sketch of the robber's face. Her sketch showed the birthmark and chin hair. About two weeks later she was shown five black and white photographs, from which she chose that of defendant. Her in-court identification was positive.
"Lori Uhlman, a sales clerk and sister of Marsha Heidt, saw the robber at close range as he directed a gun at her. She described his dress, which included a maroon, gray and black jacket. She did not observe the birthmark, but saw the moustache and short chin hair, of three or four days' growth. About two weeks later she was shown a group of five photographs, from which she selected that of defendant. Her courtroom identification of defendant as the robber was positive.
"One of the witnesses, Sidne Stice, had left California for Michigan two weeks after the robbery. She had seen neither defendant nor any photograph of him between the time of the robbery and the date on which she testified. Her in-court identification of defendant was positive. During the robbery she had observed the birthmark on the robber's left cheek, that there was hair on his chin as though he was trying to grow a goatee or had forgotten to shave for a couple of days.
"Mark Steven Francisco was working as a cook in the establishment. He saw the robber with a gun in his hand, and saw bullets in the cylinder. The witness described a maroon, gray and black Pendleton plaid jacket, a drooping moustache and incipient goatee. He did not observe a birthmark. He was shown a group of five color photographs and selected that of defendant, whom he positively identified as the robber at trial.
"Both groups of photographs were from the upper torso upwards.
"Lloyd R. Cox, a San Diego police officer, showed the group of five black and white photographs to Briddell, Heidt and Uhlman on September 17. The group of color photographs had been taken on September 19, of which that of defendant was shown by Cox to Francisco in November. Cox did not say or suggest to anyone that the robber was the subject of any of the photographs. Each witness was interviewed and shown the photographs apart from the other witnesses. Cox asked the witnesses 'to look through the photographs and see if anyone looked familiar to them'; he did not indicate any one of the subjects to any witness or say that another witness had made an identification.
"One witness for the defense testified that on the night of the robbery defendant was working as a parking lot cleaner from approximately 6:30 p. m. until 5:00 the next morning, September 4; that he was under the direct supervision of the witness, his employer.
"Other witnesses for the defense had seen a man with a moustache working with defendant's employer at a parking lot that night. Another witness, to whom defendant was known, said he had seen defendant shortly after 7 o'clock that evening.
"The records kept by the employer showed payments made to defendant both before September 3 and after September 4, but none for either of those two dates.
"Defendant contends it was error to admit the photographs into evidence.
"We have examined the photographs shown to the witnesses. The photograph of defendant in the group of black and white pictures showed him to be cleanshaven, except for a faint growth on the upper lip, and showed a small spot of some kind on his left cheek which might have been a birthmark. Of the other subjects in the group, one had an incipient moustache and chin whiskers and two others had a slight growth of chin hair. So far as can be determined, the hair coloring of the five subjects was much alike.
"In the group of color photographs, all the subjects had moustaches of the type described by the witnesses. Defendant and three of the other subjects had some growth of hair on the chin, and all the subjects were of the same general coloring. The birthmark on defendant's left cheek was reddish brown in color and much smaller than a ten-cent piece. Another of the subjects with moustache and chin whiskers had a small natural blemish on his left cheek, in much the same position as that on defendant.
"In Simmons v. United States, . . . 390 U.S. 377, 385, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, the court said: '(W)e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' . . .
" The trial court might properly find that the photographs, and the manner of showing them to the witnesses, were not unduly suggestive. The fact defendant's photograph, in the group of black and white photographs, was the only one showing a person with a birthmark did not make it unduly suggestive.
" Where identification evidence is shaky and there is evidence as to alibi, error in the admission of identification evidence or illegality in the identification procedures may compel reversal. (People v. Banks, 2 Cal.3d 127 (84 Cal.Rptr. 367, 465 P.2d 263); People v. Citrino,11 Cal.App.3d 778, 784 (90 Cal.Rptr. 80).)
" Here there was no error, and the identification evidence was anything but shaky. Each of five witnesses was positive defendant was the robber. With several of them the birthmark played no part.
"To the extent that distinctive physical characteristics played a part in an identification, what was said in People v. Lawrence, 4 Cal.3d 273, 278-279 (93 Cal.Rptr. 204, 481 P.2d 212), has application: 'As long as the photographs from which the witness made his identification are preserved and available at trial, counsel for the accused, by using them in cross-examination of prosecution witnesses, can easily reveal the possibility of prejudice and thereby impugn the identification testimony.'
"There was no error in permitting, over objection, the admission of the photographs shown to the witnesses and the fact that the witnesses identified photographs of defendant as those of the robber.
"There is nothing in the cases cited by defendant that compels a contrary conclusion. (See People v. Caruso, 68 Cal.2d 183 (65 Cal.Rptr. 336, 436 P.2d 336); Foster v. California, 394 U.S. 440 (89 S.Ct. 1127) (22 L.Ed.2d 402).)
"Defendant assigns as error the court's refusal to give a requested instruction which his brief denominates a 'Sears instruction.' That characterization derives from certain language in People v. Sears, 2 Cal.3d 180 (84 Cal.Rptr. 711, 465 P.2d 847), which some members of the criminal bar have interpreted as authorizing defense counsel to devise a form of so-called instruction on the law tailored to present judicial comment upon testimony favorable to the defendant, or judicial analysis of prosecution evidence as giving rise to a reasonable doubt upon some issue essential to proof of the charge.
"The language of People v. Sears, supra, 2 Cal.3d 180, 190 (84 Cal.Rptr. 711, 465 P.2d 847), which is looked to as authority for the proposition that the requested...
