People v. Citrino, Cr. 7734
| Citation | 90 Cal.Rptr. 80,11 Cal.App.3d 778 |
| Decision Date | 30 September 1970 |
| Docket Number | Cr. 7734 |
| Court | California Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony CITRINO, Defendant and Appellant. |
Marteen J. Miller, Public Defender of Sonoma County, Michael F. O'Donnell, Deputy Public Defender, Santa Rosa, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Kelly, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Anthony Citrino appeals, after trial by jury, from a judgment convicting him of robbery (Penal Code, § 211.) The question is whether identification testimony upon which the conviction rests should have been excluded as tainted by unduly suggestive pretrial photographic identification procedures.
On the evening of July 10, 1968, two men entered a pharmacy shortly before closing time. The pharmacist (Gleason) and the clerk (Carol Pankovich) were the only other persons present. While one of the men (identified at trial as appellant) made a small purchase from Miss Pankovich, the other moved rapidly toward the rear of the store where Gleason was working. The two men then cooperated in robbing the store of money and narcotics, and forced both employees to lie down on the floor before binding their wrists and ankles with adhesive tape. At this point two prospective customers entered the store; one of the robbers went to the front and said that the pharmacy was closed. The customers were later identified as Marsha Cariglia and Mary Vanderwerff. After the robbers left, Miss Pankovich managed to free herself and Gleason who then called the police.
Approximately two months later, on September 16, a police officer displayed to Miss Pankovich ten photographs, one of which she picked out as looking 'like the man who I saw the most during the robbery.' Miss Pankovich had earlier described this individual to investigators as having long hair and glasses. The picture she identified is the only photograph of the ten shown to her which portrays a man with long hair and glasses.
Within a few days the officer returned and showed Miss Pankovich the same set of pictures. At that time Miss Pankovich picked out the same picture and was then asked to find another photograph of the same man. After studying the pictures for about 15 minutes, and looking through them several times, she tentatively identified another as showing the same man. She was then informed that her identification was correct and that the two photographs were indeed of the same man. The newly identified picture shows appellant with short hair and without glasses. A lineup was then conducted in which appellant was presented along with five other men. After five to seven minutes, Miss Pankovich identified appellant. At trial she identified appellant in court as one of the robbers, declaring 'it's not a positive identification.'
On the day before trial, witnesses Cariglia and Vanderwerff were brought to the district attorney's office and shown a group of five photographs, and were asked if they could identify the man they had seen at the pharmacy. Three of the five photographs depicted appellant. One of the pictures of appellant was attached to a fingerprint identification card which indicated that he had already been twice convicted of burglary. The witness picked out one of the pictures of appellant. Both witnesses had seen the man at the drug store only briefly and both were uncertain in their courtroom identification of appellant.
When the defense objected to the in-court identifications, the court took evidence, out of the presence of the jury, and determined that none of the identifications had been tainted by the photographic identification procedures employed by the investigating officers. The question on appeal is whether those determinations can be sustained.
In Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the United States Supreme Court noted that incorrect identification may occur even where police 'follow the most correct photographic identification procedures.' (Id. at p. 971.) Observing that '(t)his danger will be increased if the police display to the witness * * * the pictures of several persons among which the photograph of a single such individual recurs or is some way emphasized,' (id.) the court declared 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.' (Id.) In Simmons, the trial court had not dealt with the question of possible misidentification and, indeed, had denied the accused access to the photographs which had been used to identify him. (Id. at p. 970.) Thus it appears that the standard announced in Simmons () should be applied on appellate review where the trial court has failed properly to consider the likelihood of misidentification arising from the procedure used.
The present case differs procedurally from Simmons; the trial court properly held hearings, out of the presence of the jury, to consider the propriety and effect of the identification procedures used. (Cf., People v. Caruso (1968) 68 Cal.2d 183, 189--190, 65 Cal.Rptr. 336, 436 P.2d 336.)
The questions for determination by the trial judge may be likened to those presented where the accused attacks the validity of an arrest or of a search and seizure. In such cases, as in the present case, the accused is asserting that the prosecution proceeded illegally in obtaining evidence which may lead to his conviction. That claim places upon the prosecution, as the proponent of the identification evidence, the burden of showing that the offered identification testimony is admissible. (Evid.Code, § 403, subd. (a); Witkin, California Evidence (2d ed. 1966) § 1082, et seq.) The trial...
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