People v. Roberts

• Citation: 256 Cal.App.2d 488,64 Cal.Rptr. 70
• Decision Date: 29 November 1967
• Docket Number: Cr. 6062
• Court: California Court of Appeals
• Parties: people of the State of California, Plaintiff and Respondent, v. Robert J. ROBERTS, Defendant and Appellant.

Page 70

64 Cal.Rptr. 70

256 Cal.App.2d 488

people of the State of California, Plaintiff and Respondent, v. Robert J. ROBERTS, Defendant and Appellant.

Cr. 6062.

Court of Appeal, First District, Division 1, California.

Nov. 29, 1967.

Patricia Lane, Carmel, for appellant.

Thomas C. Lunch, Atty. Gen. of State of California, Robert R. Granucci, Lawrence R. Mansir, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Defendant was found guilty by a jury of a violation of Penal Code, section 288a. From an order suspending imposition of sentence and granting probation on certain conditions, he appeals.

As a result of complaints about homosexual activity in a park's public rest room Deputy Sheriff Gingery and Detective Martin were assigned to investigate. They stationed themselves in a space adjacent to the men's rest room, set apart from that room by a double wood wall separated by an air space of approximately 1 1/2 inches. Several holes were drilled in the wall through which the officers could see what might be called the public portion of the men's rest room--that area visible as one entered the room.

On the afternoon of January 27, 1966, around 3 p.m., Officer Gingery was standing on a two-by-four about six feet off the ground, peering through one of the holes. He saw a man whom he knew by name copulating his mouth with the sexual organ of a man unknown to the officers. At the same time Officer Martin was looking through a hole about two or three feet from the floor. He also saw the two men engaged in the act. They were observed by the officers from a distance of 10 or 12 feet for from 20 to 45 seconds. There was no artificial light in the rest room. The lighting conditions were described by one of the officers as fair.

Officer Gingery took notes at the time to assist in identifying the participants. He saw the full left side and profile of the person unknown to him. Referring to the same person Officer Martin in his report said he 'might be able to identify this subject.'

The above related incident occurred on the first day of the investigation. The observations continued for several days during which time many similar acts took place in view of the officers. After the first day the officers arranged to have a concealed photographer take pictures of persons entering and leaving the rest room. Thereafter the officers observed another homosexual act in the rest room. Pictures of the suspects were taken outside of the rest room. In his report of that act, made that day, Officer Gingery stated that 'Suspect 8,' one of the participants, was a 'schoolteacher' (naming him) from (a named) 'High School, who will be positively identified by name, address, et cetera, * * * and is known to this deputy and Detective Martin, * * *. (T)he suspects will be identified by this deputy and Detective Martin.'

When the pictures of the later suspects were developed the officers concluded that their positive identification of the schoolteacher was erroneous. In a supplementary report it was explained by Officer Gingery, 'From these photos a positive identification was made on subject 8.' This time the positive identification was not of the schoolteacher but of a different person. The supplementary report continued: 'Detective Martin was concerned with the identification that was made on that particular time was tentative due to the fading light and the close resemblance of the two suspects. Identification that was listed prior was tentative; however, upon viewing the photographs several positive identifications have been made on the (newly identified) Suspect No. 8 and (the schoolteacher) is cleared from the matter that he was concerned with about being Suspect 8 mentioned in the prior report.'

Defendant was arrested two weeks after the January 27 incident. The alleged accomplice was also arrested. He pleaded guilty. He testified for defendant at the trial, admitting his guilt but denying that defendant was the other party involved. Defendant's mother testified that he had been with her the entire afternoon of January 27. Defendant himself did not testify.

The conviction of Roberts rests entirely on his identification by the officers. There is no corroboration.

We are bound on this appeal by the well-known rule expressed in People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911, 916, as follows: 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt.' The direct eyewitness testimony here of the two officers must be deemed substantial evidence. (See People v. Sanders, 206 Cal.App.2d 479, 482, 23 Cal.Rptr. 725; People v. Muse, 196 Cal.App.2d 662, 664, 16 Cal.Rptr. 768.) Their credibility was for the jury to determine. (See People v. Barbera, 50 Cal.2d 688, 692, 328 P.2d 973; People v. Wade, 215 Cal.App.2d 49, 52, 29 Cal.Rptr. 822.)

Nevertheless, we think that the officers' identification of an unknown person through peepholes under 'fair' lighting conditions, the deferred arrest and the complete lack of corroboration, make this a 'close case' under the principle discussed in Witkin, California Criminal Procedure, section 755, pages 728--729. This belief is fortified by the officers' demonstrated lack of expertise in making identifications.

'When the case against a defendant is a close one, an error which otherwise would not be prejudicial may justify a new trial.' (People v. Newson, 37 Cal.2d 34, 46, 230 P.2d 618, 625; see also People v. Moore, 43 Cal.2d 517, 531, 275 P.2d 485; People v. Baker, 42 Cal.2d 550, 577, 268 P.2d 705; People v. Dail, 22 Cal.2d 642, 659, 140 P.2d 828.) Certain language of the case of People v. Adams, 14 Cal.2d 154, 93 P.2d 146, which involved a charged violation of Penal Code section 288 seems appropriate here. The court there stated (pp. 167--168, 93 P.2d p. 152): '* * * miscarriages of justice often result,--with the consequence that innocent men are or have been humiliated, ruined in character and good reputation, and caused to suffer ignominiously for the alleged commission by them of offenses of which they were or are not guilty. It is because of the recognized existence of the ease with which convictions of men, even those of unblemished reputation, may be secured in cases of the instant kind that courts are at pains to insist upon fair trials in all respects being accorded to the accused. Errors committed either by the prosecution or by the court in the course of the trial, which ordinarily might be considered trivial and as of no material consequence from a standpoint of adverse effect upon the rights of a defendant, may become of great importance when committed in a case of the character of that here involved.'

We consider defendant's assignments of error in the light of the 'close case' rule.

Defendant urges error in the refusal of the court to give a requested instruction to the effect that if the jury had a reasonable doubt as to whether the police officers could identify the defendant from their place of concealment the jury should acquit him. This instruction pinpointed defendant's whole case--that his identification by the officers was mistaken.

The court did instruct the jury in the language of Penal Code, section 1096. ¹ Penal Code, section 1096a provides: 'In charging a jury, the court may read to the jury section 1096 of this code, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.' However, it has been held that where an additional reasonable doubt instruction which points up the theory of the defense is requested, it is error (notwithstanding Pen.Code, § 1096a) to refuse to give it.

In People v. Granados, 49 Cal.2d 490, 319 P.2d 346, the court instructed the jury in the words of Penal Code, section 1096. The defendant claimed error in the court's refusal to give a requested instruction as follows (pp. 495--496, 319 P.2d p. 350): 'That if the jurors had a reasonable doubt that the defendant committed a violation of section 288 of the Penal Code or attempted violation of said section on the date of October 1, 1956, then they could not return a verdict of guilty of first degree murder based upon the theory that there was an unlawful killing of a human being with malice aforethought in the perpetration or attempted perpetration of a violation of section 288 of the Penal Code.' The Supreme Court also stated at page 496, 319 P.2d at page 350: 'It was error to refuse this instruction. It accurately stated the law and pinpointed the theory of the defense. Section 1096a of the Penal Code declares that when the statutory definition of reasonable doubt is given (see Pen.Code, § 1096), no other instruction need be given defining reasonable doubt. Despite this section, a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered.'

In People v. Kane, 27 Cal.2d 693, 166 P.2d 285, the standard instruction of Penal Code, section 1096 was read to the jury. The trial judge refused a requested instruction, "Before you can convict the defendant in this case, you must be convinced beyond a reasonable doubt that the property taken was against the will and without the consent of...