People v. Cuevas

• Decision Date: 26 December 1995
• Docket Number: No. S041514,S041514
• Citation: 12 Cal.4th 252,48 Cal.Rptr.2d 135,906 P.2d 1290
• Parties: , 906 P.2d 1290, 95 Cal. Daily Op. Serv. 9885, 95 Daily Journal D.A.R. 17,113 The PEOPLE, Plaintiff and Respondent, v. Robert Munoz CUEVAS, Defendant and Appellant.
• Court: California Supreme Court

Page 135

48 Cal.Rptr.2d 135

12 Cal.4th 252, 906 P.2d 1290, 95 Cal. Daily Op. Serv. 9885,

95 Daily Journal D.A.R. 17,113

The PEOPLE, Plaintiff and Respondent, v. Robert Munoz CUEVAS, Defendant and Appellant.

No. S041514.

Supreme Court of California.

Dec. 26, 1995.

John T. Philipsborn, San Francisco, as amicus curiae on behalf of defendant and appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkins, M. Eugenia Lopez and Keith I. Motley, Deputy Attorneys General, San Diego, for plaintiff and respondent.

KENNARD, Justice.

In People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (hereafter Gould ) this court held that a testifying witness's out-of-court identification "that cannot be confirmed by an identification [of the defendant] at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the

                crime."  (Id. at p. 631, 7 Cal.Rptr. 273, 354 P.2d 865.)   In this case, the Attorney General challenges that holding, contending the requirement is illogical, lacks support in the law, is unsatisfactory as a matter of policy, and is contrary to a statute later enacted by [906 P.2d 1293] the Legislature (Evidence Code section 411).  For the reasons set forth below, we conclude that we should overrule Gould's holding that an out-of-court identification is in all cases insufficient by itself to sustain a conviction.  Instead, the sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test of People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738 that is used to determine the sufficiency of other forms of evidence to support a conviction
                

I

At approximately 3 a.m. on July 19, 1992, two gunmen approached an outdoor party of the "Jeffrey Street" gang in an alley in Anaheim, Orange County, and shot Vincente Garcia. One bullet hit Garcia in the left arm; another hit his right testicle and lodged in his thigh. Among those present during the shooting were Hugo Guzman, a Jeffrey Street gang member; Oscar Gomez, who considered Jeffrey Street's members to be his "home boys"; and Carlos Rodriguez, a friend of Jeffrey Street's members but not a member himself. After Garcia was shot, Rodriguez drove him to the hospital. Doctors removed Garcia's injured testicle.

Immediately after the shooting, Gomez, Guzman, and others left in Gomez's car. As they drove off, a passenger in the car was hit by a thrown bottle. Gomez drove his injured passenger to a hospital; there he discovered two fresh bullet holes in his car. Anaheim Police Officer John Orr happened to be at the hospital and separately interviewed Gomez, Guzman, and Gomez's passengers. Gomez told Officer Orr that two gunmen had walked up to the party and started shooting. Gomez gave a physical description of the two gunmen, one of whom he described as a male Hispanic, age twenty-five, with a heavy build, five feet seven inches tall, wearing a white-and-blue striped shirt, and with a thick mustache and short dark hair.

Gomez went outside to show Officer Orr the bullet holes in his car. Once outside and away from his friends, Gomez whispered to Officer Orr that the shooter was a "West Side Anaheim" gang member known as "Beto," and that he could identify Beto if he saw Beto again.

When Officer Orr interviewed Guzman at the hospital, Guzman described the gunman as a male Hispanic, age 25, with a heavy build, wearing a light-colored long-sleeved shirt, and having medium-length, slicked-back hair and a mustache. Guzman's description was consistent with that given by Gomez.

Later, Officer John Kelley interviewed Guzman. At first, Guzman denied being present during the shooting. When the officer reminded Guzman of Guzman's earlier statements to Officer Orr at the hospital, Guzman replied he could not remember the shooting.

Officer Kelley also interviewed Gomez three days after Garcia was shot. In this interview, Gomez reiterated and expanded his identification of "Beto." Gomez told Officer Kelley that "Beto" was the shooter. Gomez described "Beto's" physical appearance as Hispanic, 25 years old, 5 feet 7 inches tall, weighing 175 to 190 pounds, with a bushy mustache and dark medium-length hair that was combed straight back, and wearing a white long-sleeved shirt with blue stripes. Gomez said he became acquainted with "Beto" through a former girlfriend. When Officer Kelley showed Gomez a notebook containing 30 to 40 photographs of West Side Anaheim gang members, Gomez selected defendant Robert Munoz Cuevas's picture as the one depicting "Beto."

Later, while being interviewed by a defense investigator, Gomez repudiated his earlier identification of defendant as the shooter, claiming it had been motivated by anger at the West Side Anaheim gang for providing evidence against Guzman's brother, who was charged with murder in an unrelated case.

Defendant was arrested and charged with the attempted murders of Garcia and Gomez and with assault with a firearm on Garcia and Gomez. Defendant was also charged Both Gomez and Guzman testified at defendant's trial. Gomez recanted his identification of defendant as the gunman. Gomez acknowledged that he knew defendant as "Beto," that he was previously acquainted with defendant through his former girlfriend, that in his two statements to the police he had identified defendant as the shooter, and that he had selected defendant's photograph as the gunman he called "Beto." But Gomez claimed he had falsely identified defendant and that he had done so as "payback" for the West Side Anaheim gang's role in providing evidence in the (unrelated) murder case against Guzman's brother. When Guzman testified, he admitted being present during the shooting, but denied having seen any gunman and denied having described the gunman to Officer Orr.

with personally using a firearm in committing these crimes, and with intentionally inflicting great bodily injury on Garcia.

Both Gomez and Guzman testified that they believed it was wrong to "rat off" a member of a rival gang; that is, to inform the authorities that the gang member has committed a crime. Gary Bushman, a district attorney's investigator and gang expert, likewise testified that cooperating with police, even if the suspect is in a rival gang, is generally disapproved of in gang culture and that gang members who initially cooperate with police are subject to intimidation to change their testimony at trial.

Officers Kelley and Orr testified that in their separate interviews of Gomez, he had given a physical description of the gunman, whom he identified as "Beto." In addition, Officer Kelley testified to Gomez's previous contacts with defendant.

Another witness who had been present at the shooting, Rodriguez, testified that as the gunmen approached immediately before the shooting, Gomez exclaimed: "I know that guy. He's from West Side Anaheim." Additional evidence was presented regarding defendant's membership in the West Side Anaheim gang and gang activities in general in Anaheim. Defendant generally met the physical descriptions given by Gomez and Guzman.

Before submission of the case to the jury, defendant moved for a judgment of acquittal (Pen.Code, § 1118.1), asserting that because there was no in-court identification of him as the shooter and no other evidence to link him to the crimes, there was insufficient evidence to convict him. The trial court denied the motion, as well as defendant's subsequent request that the court instruct the jury it could not convict defendant on the basis of an out-of-court identification unless it found the identification was corroborated by other evidence tending to connect defendant to the offense.

The jury convicted defendant of assault with a firearm on Garcia and found that defendant had personally used a firearm in committing the offense. Defendant appealed. The Court of Appeal concluded that the out-of-court statements of witnesses Gomez and Guzman adequately corroborated each other under Gould, supra, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, and that therefore the evidence was sufficient to support the conviction. The court held, however, that the trial court committed prejudicial error in not instructing the jury on the need for corroboration, thus requiring a reversal of the judgment.

The Attorney General petitioned this court for review. The Attorney General contends that Gould, supra, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, wrongly held that an out-of-court identification by itself cannot be sufficient evidence to prove guilt beyond a reasonable doubt. Alternatively, the Attorney General argues that even if the Gould rule is correct, it is one for an appellate court to apply in reviewing the sufficiency of the evidence supporting a conviction, and not one for a jury to apply. We granted review to consider whether to overrule the Gould rule, and, if not, whether the jury should be instructed in its application.

II

It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.) To determine whether the prosecution has introduced sufficient evidence There are exceptions, however, to the substantial evidence test. The Legislature has determined that because of the reliability questions posed by certain categories of evidence, evidence in those categories by itself is insufficient as a matter of law to support a conviction. For example, the Legislature has required that the testimony of an accomplice (Pen.Code, § 1111) and the testimony of a single witness in a perjury case as to the falsity of the defendant's perjurous statement (Pen.Code, § 118, subd. (b)) must be corroborated before a conviction can be based on them. This court in Gould, supra, 54 Cal.2d...