People v. Hurley, 3482

• Decision Date: 08 August 1979
• Docket Number: No. 3482,3482
• Citation: 157 Cal.Rptr. 364,95 Cal.App.3d 895
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timothy Lee HURLEY, Defendant and Appellant. Crim.

Page 364

157 Cal.Rptr. 364

95 Cal.App.3d 895

The PEOPLE, Plaintiff and Respondent, v. Timothy Lee HURLEY, Defendant and Appellant.

Crim. No. 3482.

Court of Appeal, Fifth District, California.

Aug. 8, 1979.

Hearing Denied Oct. 11, 1979.

[95 Cal.App.3d 897] Quin A. Denvir and Paul Halvonik, State Public Defenders, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, Richard E. Shapiro, Kevin P. Regan and Mark Christiansen, Deputy State Public Defenders, Sacramento, for defendant and appellant.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel Carey and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ZENOVICH, Associate Justice.

Appellant Timothy L. Hurley was charged with two counts of robbery (Pen.Code, § 211) by an information filed in Fresno County Superior Court on August 11, 1977; the information further alleged appellant used a firearm in the commission of both offenses (Pen.Code, § 12022.5). Appellant was arraigned and pleaded not guilty to both counts and denied the firearm-use allegations.

Appellant's defense counsel made pretrial motions for the appointment of an expert witness, to dismiss count two of the information pursuant to Penal Code section 995, and for the discovery of certain evidence in possession of the prosecution. The trial court granted the motion for discovery but denied the motions for an expert witness and to dismiss count two.

Appellant's jury was selected on October 4, 1977. His trial was held the next day, resulting in a verdict of guilty on both counts and a finding appellant used a firearm in the commission of both offenses. Appellant was sentenced to state prison for the term prescribed by law with the terms on count one and count two to be served concurrently. Appellant filed a timely notice of appeal.

Count one involved a robbery of a Radio Shack store in Fresno about 9 p. m. on May 27, 1977, by two gunmen. At trial, the employee who was working at the time of the robbery identified appellant as one of the gunmen.

Count two involved the robbery of another Radio Shack store on May 29, 1977, at approximately noon. The employee working at that store identified appellant in court as the gunman.

Appellant presented an alibi defense. Ignacio Ramirez, appellant's father-in-law, testified that appellant had been working for him from 11 a. m. to 1 p. m. on the day of the May 29 robbery. Ramirez also testified that, to his knowledge, appellant had been working on a car on May 27.

Appellant testified he had been at work at noon on May 29, 1977. He also testified he had been working on a car all day on May 27, 1977.

The employee who was robbed in the May 29 robbery said he had not been able to positively identify a photograph of appellant as the robber, but it was "very close." ¹

First, appellant contends that the trial court abused its discretion by denying his request for the appointment of an expert on eyewitness identification. We disagree.

Evidence Code section 730 permits the court to appoint experts to investigate, report and testify upon its own motion or upon the motion of a party. "(T) here can be no question that equal protection demands that In a proper factual situation a court must appoint an expert that is needed to assist an indigent defendant in his defense." (torres v. municipal court (1975) 50 cal.app.3d 778, 785, 123 cal.rptr. 553, 557, emphasis added.)

However, the decision to grant a defendant's request for the appointment of such an expert remains within the sound discretion of the trial court. (Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52, 141 Cal.Rptr. 273; Torres v. Municipal Court, supra, 50 Cal.App.3d at p. 784, 123 Cal.Rptr. 553.)

At the trial court, appellant's points and authorities for such an appointment and the declaration of his attorney merely indicated that eyewitness identification was "crucial evidence" in the case, and that an expert was required to examine the prosecution's evidence to determine its weaknesses and perhaps to testify. We are of the opinion that such a weak showing in the trial court in this case is very similar to that made in the trial court in Collins where the court noted:

"Counsel's declaration indicated the appointment was sought not only to interpret the medical records but also to evaluate information communicated to counsel by petitioners. The trial court declined to appoint the expert for the purpose of evaluating information communicated to counsel by petitioners. The court's refusal to appoint the expert for that purpose clearly implies a finding that for that purpose the appointment of an expert is unnecessary. This finding is supported by the record. Petitioners made no showing whatsoever, other than the bare assertion, that an expert was needed to evaluate information communicated from petitioners. The court could reasonably conclude no expert was needed for this purpose." (Collins v. Superior Court, supra, 74 Cal.App.3d at p. 52, 141 Cal.Rptr. at p. 275, fn. omitted.)

Appellant had every opportunity to attack the identifications in this case through cross-examination of the particular witnesses. At the time of appellant's motion, he brought forth no reasons as to why such a procedure would not be adequate in this case, nor did the later events at trial indicate any special factors to support a conclusion an expert would have been crucial to the defense. In fact, appellant is now asking this court to review the discretionary act of the trial court based upon factual assertions not before the court below. In this court he has offered the results of studies conducted by two sets of experimental psychologists to support his assertion of fact that eyewitness identification testimony is inherently unbelievable. None of this information was presented to the trial court. Trial counsel not only failed to present the information, but he made no offer of proof as to what assistance such an expert could provide. Furthermore, when given a one-week extension of time by the court to find authorities and prepare an oral argument in the matter, trial counsel failed to present any information to the lower court upon which it could exercise a reasoned discretion. Furthermore, all of the conflicts which appellant now points to were before the jury. The defense called the police officers who provided emphasis to weakness in the Duenes identification. The witnesses were thoroughly examined as to lighting conditions, ability to perceive, uncertainty of identification, failure to make a previous positive identification and their emotional state at the time of the offenses. Therefore, we find that the trial court did not abuse its discretion by concluding that this was not "a proper factual situation" requiring the appointment of an expert pursuant to appellant's request.

Second, the appellant contends that the trial court committed reversible error by refusing to give his offered jury instruction on the unreliable nature of eyewitness identification. We disagree.

Appellant offered to the trial court a lengthy instruction on eyewitness identification. The trial court refused to give appellant's instruction but gave CALJIC No. 2.91 and other instructions that related at least in part to the weight to be given eyewitness identifications. (See, e. g., CALJIC No. 2.90 reasonable doubt in general; CALJIC No. 4.50 alibi; CALJIC No. 17.02 jury must find as to each count).

The instruction offered by appellant originated by its approval by the court in United States v. Telfaire (1972) 152 U.S.App.D.C. 146, 469 F.2d 552, 558. Subsequently, it has been approved by other federal courts. (See, e. g., United States v. Hodges (7th Cir.1975) 515 F.2d 650, 653; United States v. Holley (4th Cir.1974) 502 F.2d 273, 275.) However, support for the Telfaire instruction has not been unanimous in the federal system. (See United States v. Masterson (9th Cir.1976) 529 F.2d 30, 32.)

California courts have concluded that a defendant in a criminal case is entitled to jury instructions directing the attention of the jury to evidence from which reasonable doubt of the defendant's guilt might be engendered; this includes an instruction relating the issue of identification to reasonable doubt. (People v. Guzman (1975) 47 Cal.App.3d 380, 387, 121 Cal.Rptr. 69.)

In Guzman, the trial court had refused to give a Telfaire instruction as was offered by appellant in the trial court here. However unlike the present case, the trial court in Guzman gave no instruction to link the issue of identification with the concept of reasonable doubt. The court concluded that, although the Telfaire instruction was, at least in part, "too long and argumentative," it "at least presents the basic problem and could have been modified to eliminate the faults contained" therein. (People v. Guzman, supra, 47 Cal.App.3d at p. 386, 121 Cal.Rptr. 69.)

Later cases have interpreted Guzman to hold that instructions must be given upon request to focus the jury's attention upon the issue of identification and the prosecution's burden to prove a defendant's guilt beyond a reasonable doubt, but have not required the Telfaire instructions, nor other such detailed instructions, to be given. Rather, it has been held that CALJIC Nos. 2.20 and 2.91, as were given in this case, "sufficiently focused the jury's attention on the People's burden of proof on the issue of identity." (People v. Kelley (1977) 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457, 461; see also People v. Boothe (1977) 65 Cal.App.3d 685, 690, 135 Cal.Rptr. 570; People v. Smith (1977) 67 Cal.App.3d 45, 49, 136 Cal.Rptr. 387.) We are of the opinion that this is the proper view.

CALJIC No. 2.91 underlines to the jury the fact the prosecution has the burden of proving a defendant's identity as the perpetrator of the crime charged, and that...