People v. Guzman

• Decision Date: 22 April 1975
• Docket Number: Cr. 25166
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Partrick GUZMAN, Defendant and Appellant.

Page 69

121 Cal.Rptr. 69

47 Cal.App.3d 380

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Partrick GUZMAN, Defendant and Appellant.

Cr. 25166.

Court of Appeal, Second District, Division 5, California.

April 22, 1975.

As Modified May 5, 1975.

Rehearing Denied May 8, 1975.

As Modified May 21, 1975.

Hearing Denied June 19, 1975.

Barry Tarlow, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Howard J. Schwab and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

WHYTE, ^* Associate Justice.

Defendant appeals from a judgment of conviction of first degree murder, a violation of Penal Code section 187, and a finding that he used a firearm at the time of the commission of the offense.

On February 3, 1973, at approximately 5:45 p.m., Benjamin Kerman, the owner of Carson Jewelers in the City of Carson was shot and killed in the course of a robbery or attempted robbery of the store. Appellant and one Robert Donner were jointly accused of the commission of the offense. According to the police theory Donner acted as decoy and lookout during the commission of the robbery. On the day in question a man, subsequently identified by Joie Hyde, a clerk in the store, to have been the defendant, entered the store and approached the watch counter. He asked for the watchmaker and was told he was in but was in the back. While this man was waiting, Donner, wearing a cast and carrying a crutch, entered and asked to see wedding and engagement rings. Moments later Kerman entered the room and Mrs. Hyde told him the man at the watch counter was waiting for him. She then turned her attention to Donner.

About four minutes later a shot was heard and Mrs. Hyde, leaving her customer, started toward the back of the store where Kerman and the man she later identified as defendant had gone. As she passed the cash register the first man who had entered the store rushed from the rear of the store with a gun in his hand. As he passed within a foot of Mrs. Hyde he pointed the gun at her and ordered her to go to the back of the store and stay there. On entering the rear room she saw Mr. Kerman lying in a pool of blood. Other evidence will be referred to in the discussion of the points raised on appeal.

At the trial Mrs. Hyde identified defendant as the man with the gun. She stated his appearance was changed, particularly as to a moustache and the way he was wearing his hair, but that he was the man. She was extensively cross-examined concerning previous identifications and doubts and prior descriptions given the officers. She conceded defendant did not particularly resemble a composite drawing made by a police artist from her descriptions given near the time of the crime.

Defendant attempted to present expert testimony of Dr. Robert Shomer, a psychologist, concerning the factors involved in identification such as those involved in 'perception,' memory,' the social context in which the individual tries to recollect something once perceived, and the psychological state of the perceiving organism, e.g., observation under stress. An elaborate written offer of proof, which was in the nature of a psycho-legal brief, consisting of some 20 pages was filed with and considered by the trial court. After fully considering this offer and the arguments of counsel the trial judge sustained the People's objection to this testimony. In doing so the judge stated:

'This type of testimony doesn't come under any rule of evidence that I know of. It is something, I suppose, that could possibly be used to inform the jury about a theory that the psychiatrists have propounded and have become very popular in doing so and hope to become a part of the court system in informing juries of how they should determine facts in a case, but I think the real question here is a question for the jury to decide. It is not a matter that the jury needs expert testimony regarding. It is something that everyone knows about, the problems of identification. The jorors here were well questioned regarding their experience with identification, with having mistakenly identified people. Everyone knows those things happen.'

This action by the trial judge is appellant's first claim of error. The question of the admissibility of such evidence has very recently been before the appellate courts in People v. Johnson (1974) 38 Cal.App.3d 1, 112 Cal.Rptr. 834 (1974). There, as here, there was a question of a witness' prior doubtful identification. In fact in that case there had been prior identification of an entirely different person as the one who fired the gun. In Johnson the court stated 'In rejecting defendants' offer of the psychologist's expert testimony, the trial court declared in effect that the testimony would take over the jury's task of determining the weight and credibility of the witness' testimony. This ruling was well within the trial court's discretion.'

The extent of the trial court's broad discretion in matters of this kind is fully discussed in Ballard v. Superior Court (1966) 64 Cal.2d 159, 171, 49 Cal.Rptr. 302, 410 P.2d 838. How far should the courts go in allowing so-called scientific testimony, such as that of polygraph operators, hypnotists, 'truth drug' administrants, as well as purveyors of general psychological theories, to substitute for the common sense of the jury? Surely the answer is 'not in all cases, or even in the ordinary or usual cases.' The good judgment of the trial judge as to whether the particular case contains such unusual factors as to make the 'expert testimony' a help to jury determination or whether the case is one where the effect of such testimony threatens to take over the jury's function must control in the absence of a clear abuse of discretion. We find no such abuse here.

Appellant's second claim of error is somewhat kin to but entirely separate from his first. This claim is that the trial court should have given specific instructions on the factors that affect eyewitness identification testimony, as they relate to reasonable doubt. Defendant proposed four instructions covering the People's burden of proving identity beyond a reasonable doubt and covering factors which should be considered in determining whether such burden had been met. ¹ While the trial court could well consider instructions 1 and 2, which go together, too long and argumentative, instruction 1 at least presents the basic problem and could have been modified to eliminate the faults contained. Instructions 3 and 4 are basically correct and if anything require the changing of only a word or two. The time is past when a trial judge may refuse an otherwise proper instruction because of the use of an improper word.

Notwithstanding the broad language of Penal Code section 1096, a defendant is entitled to an instruction directing the jury's attention to evidence from the consideration of which reasonable doubt of defendant's guilt might be engendered. (People v. Kane (1946) 27 Cal.2d 693, 166 P.2d 285; People v. Wilson (1929) 100 Cal.App. 428, 432, 280 P. 169.) Under this rule defendant is entitled to an instruction relating identification to reasonable doubt. (People v. Roberts (1967) 256 Cal.App.2d 488, 64 Cal.Rptr. 70; Gregory v. United States (1966) 125 U.S.App.D.C. 140, 369 F.2d 185; Macklin v. United States (1969) 133 U.S.App.D.C. 139, 409 F.2d 174; United States v. Telfaire (1972) 152 U.S.App.D.C. 146, 469 F.2d 552.)

That it was error to refuse defendant's request for an instruction on the question of identification and reasonable doubt is established by People v. Roberts, Supra. If said error stood alone we would hold it nonprejudicial in the light of the giving of general instructions on the credibility of witnesses (CALJIC 2.20) which covers many of the matters which might affect the validity of a witness' identification testimony, and the last paragraph of CALJIC 4.50 on alibi, which expressly requires proof beyond a reasonable doubt as to defendant's presence at the scene of the crime (basically the same issue as is involved in identification). (People v. Gomez (1972) 24 Cal.App.3d 486, 100 Cal.Rptr. 896.) However, when coupled with other errors hereinafter set forth we feel the error may have contributed to defendant's prejudice.

There is more danger of prejudice in cases such as this where a cautionary instruction on circumstantial evidence was given. In such a case the absence of a cautionary instruction on the possible weaknesses of direct evidence of identity may lead the jury to feel such direct evidence is considered more substantial.

We next refer briefly to appellant's contention that the court erred in instructing the jury that an inference of guilt could be drawn from the evidence of flight. ² The instruction given was CALJIC 2.52. The propriety of this instruction has long been recognized. (People v. Johnson (1969) 271 Cal.App.2d 616, 76 Cal.Rptr. 768; People v. Mulqueen (1970) 9 Cal.App.3d 532, 543, 88 Cal.Rptr. 235.) Appellant recognizes this but asks us to reevaluate this instruction in the light of judicial skepticisim as to the probative value of the evidence of flight expressed in some Federal Court opinions including Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This same request for a reevaluation of this instruction was made to our California Supreme Court in 1972 and Wong Sun was urged as a basis for the request. The Supreme Court refused to do so and upheld the instruction. (People v. Cannady (1972) 8 Cal.3d 379, 105 Cal.Rptr. 129, 503 P.2d 585.) There is no reason to depart from People v. Cannady, Supra. We would comment, however, that the instruction approved in People v. Hill (1967) 67 Cal.2d 105, 120, fn. 9, 60 Cal.Rptr. 234, 429 P.2d 586, may be preferable to the standard instruction in cases where defendant offers evidence of other possible explanations...