People v. Felix

• Decision Date: 31 March 1993
• Docket Number: No. A053697,A053697
• Citation: 14 Cal.App.4th 997,18 Cal.Rptr.2d 113
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fred John FELIX, et al., Defendants and Appellants.

Page 113

18 Cal.Rptr.2d 113

14 Cal.App.4th 997

The PEOPLE, Plaintiff and Respondent, v.Fred John FELIX, et al., Defendants and Appellants.

No. A053697.

Court of Appeal, First District, Division 3, California.

March 31, 1993.

Review Denied July 1, 1993.

[14 Cal.App.4th 1000] Robert D. Platt, under appointment by the Court of Appeal, Fairfax, for defendant and appellant Felix.

Thomas Lundy, under appointment by the Court of Appeal, Santa Rosa, for defendant and appellant Pedrico.

Daniel E. Lungren, Atty. Gen., George Williamson, Ronald A. Bass, Asst. Attys.Gen., Joanne S. Abelson and Christina V. Kuo, Deputy Attys.Gen., San Francisco, for plaintiff and respondent.

WERDEGAR, Associate Justice.

Fred John Felix and David Walter Pedrico were each convicted of four counts of robbery (Pen.Code, § 211)¹ and three counts of false imprisonment (§ 236).Felix was found to have personally used a firearm in three of the robberies.All the charges arose from the armed robbery of a supermarket by two men.The defense for both defendants was misidentification, and neither testified.Over defense objection, evidence was admitted that defendants had pled guilty to robbery of a restaurant, committed together before the charged crimes.We conclude admission of this prior crime was error, but was prejudicial only as to Pedrico.

FACTS

About 7 p.m. on November 9, 1989, two men entered the office of a Lucky's supermarket.The larger of the two was carrying a rifle or shotgun.They led two store employees, Elizabeth Taber and Thomas Wolf, to the check-out area.Threatening use of the gun, they took money from various registers, including those being operated by Joseph Kane, Tanya Garrison and Justin Summer.The robbers took the money, ordered everyone to the back of the store and left.

Taber, Wolf and Kane testified.All three identified Felix as the larger robber.Wolf described himself as "just about certain" of his identification of Felix.All three had also identified Felix at the preliminary hearing.Wolf admitted that when he first saw Felix at the preliminary hearing he was not as sure of his identification as he became later.Taber and Kane had also identified Felix as the larger robber in photographic lineups, but in his photo lineup Wolf had not selected anyone as the larger robber.

At trial, Wolf and Kane identified Pedrico as the smaller of the two robbers.Taber was unable to do so, although she said he was of "similar stature and size" to the smaller robber.She also did not identify Pedrico at the preliminary hearing, saying he did not look "familiar" and did not "resemble" the smaller robber.She stated: "That's the only thing that's similar is he is smaller.I didn't really look at his face, so any other features I didn't notice except for that he was smaller."Taber also did not select anyone as the smaller robber in the photographic lineup.Wolf had identified Pedrico at both the preliminary hearing and the photographic lineup, noting on his response form at the latter that he was "almost certain" of his identification.

Kane selected Pedrico from the photographic array, but did not identify him at the preliminary hearing.When he was first shown Pedrico at the hearing, Kane said, "No, I don't think that's him."A few minutes later, after further questioning, he was asked if that was still his opinion and said it was.At another point in the preliminary hearing, however, Kane said he had a "gut feeling" Pedrico was the robber and there were some physical similarities, but he did not want to put the wrong man behind bars.

Martin Blinder, a psychiatrist, testified for the defense as an expert on eyewitness identification.In addition to outlining the factors affecting reliability of eyewitness identification in general, Dr. Blinder also answered hypothetical questions based on the testimony of Taber, Wolf and Kane, explaining factors tending to increase and decrease the reliability of the identifications.Supporting the identifications were: the physical conditions, such as lighting, proximity and duration, were generally sufficient to allow for observation of the robbers' appearance; and Taber consciously tried to fix the larger robber's image in her mind and candidly admitted she could not identify the smaller robber.Raising questions about reliability were: the witnesses were frightened and angry during the crime and might have focused on the gun rather than the robbers' features; both Kane and Wolf showed some signs of increasing certainty over time; and there was a significant time gap between the crime and the first identifications (the photographic lineups).

THE PRIOR CONVICTION

The parties stipulated Felix and Pedrico had pled guilty to robbing two people at a Burger King restaurant on September 26, 1989, in Stanislaus County.No other prior convictions were put in evidence.

The prosecutor, by motion in limine, had initially sought to present evidence of seven prior robberies she intended to show defendants committed together.Five of these were robberies of Thrifty stores between October 3 and December 29, 1989; defendants had not been convicted of these crimes, but the prosecutor hoped to have witnesses identify defendants in court.The sixth was the robbery of a Burger King in Manteca (San Joaquin County) on January 25, 1990, to which defendants had pled guilty.The seventh, added the morning of the in limine hearing, was of a Lucky's store in Davis, which would be proven through witnesses.

The prosecutor conceded there were no similarities between the charged crime and the Manteca Burger King robbery other than both defendants had committed the earlier crime together; the Burger King robbery was "evidence of the association of these two defendants together."The prosecutor later discovered the Stanislaus County guilty plea and added it to the priors she sought to prove.The prosecutor did not present any details of the Stanislaus County Burger King robbery, nor did she suggest it was similar to the charged crime in any way other than the participation of both defendants.

The defense objected to evidence of any uncharged robberies as irrelevant, as inadmissible character evidence (Evid.Code, § 1101) and as more prejudicial than probative (Evid.Code, § 352).The court ruled the first, second and sixth priors presented by the prosecution admissible over these objections, finding their probative value outweighed their prejudicial effect.The court said the prosecutor could, upon making a further offer of proof, use the Stanislaus County Burger King plea instead of that in Manteca (prior No. six).

Counsel for Pedrico (Ms. O'Connor) pointed out there had been no showing the Manteca prior was similar to the charged crime.The court stated it was allowing evidence on the Stanislaus County prior because it showed defendants had been together and, hence, tended to prove identity.There ensued the following discussion:

"Ms. O'Connor: The fact that they--I mean, supposing somebody wants to--has for ten years held season tickets together at the 49'ers games so they know each other.I'm prepared to stipulate they know each other.

"The Court: That would be admissible, too.

"Ms. O' Connor: I'm prepared to stipulate they know each other.

"Ms. Kamena [the prosecutor]: I think that would take away from the--I don't think that's--that's not the idea of the evidence.The idea is that they know each other.Their association that they do robberies together.That's the identity.And that's my point.That shows a propensity to rob in concert.

"The Court: I realize that.So do all these other instances--

"Ms. O' Connor: Well--

"The Court: Anyway, that's the ruling."

The court later reiterated it was admitting the Stanislaus County prior only to show identity, in that defendants had committed a robbery together in the past.

The jury was instructed the prior conviction "was not received and may not be considered by you to prove that either defendant is a person of bad character, that either has a disposition to commit crimes or any particular crime or that the defendants have a disposition to commit crimes or any particular crime separately or together.Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show the identity of the person or persons who committed the crimes which these defendants are accused in this case.You are not permitted to consider for any other purpose the evidence admitted for this limited purpose."

The prosecutor also cautioned the jury against considering the prior as showing defendants were bad people or robbers.She continued: "The reason why that evidence is in is for one sole purpose and that is to prove that there is an association between the two defendants to use as a link in determining their identity, okay?[p] Now, the example that I use is as follows: If perhaps you are absolutely certain that Mr. Felix is the big guy and there's no question in your mind that you have kind of a little lingering, 'Well, I wonder if it is or was it Mr. Pedrico,' you can use it along this line of theory and my favorite example is the Lone Ranger.[p] If you hear that a masked man on a white horse comes riding out of town and he's with an Indian on a Pinto and you learn that the guy on the white horse with the mask is the Lone Ranger and you see him coming back in town a couple weeks later, you know, wouldn't you infer that the Indian who was with him was Tonto.Okay.If you knew he was Tonto before and that what's called circumstantial evidence that I was talking to you about earlier.You know, one was bigger, one was smaller.One was younger, one was older.So if you come to the opinion that Mr. Felix is one, you may circumstantially infer that perhaps the one with him who fits the description to enhance that direct evidence of the identification was Mr. Pedrico."

Counsel for Pedrico emphasized the prior was not...