People v. Smith

Decision Date10 February 1977
Docket NumberCr. 8187
Citation67 Cal.App.3d 45,136 Cal.Rptr. 387
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Cleo SMITH, Defendant and Appellant.

Appellate Defenders, Inc., by Paul Bell, San Diego, and William F. Sink, Vista, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

GERALD BROWN, Presiding Justice.

Cleo Smith appeals a judgment entered on jury verdicts convicting him of assault with a deadly weapon (Pen. Code § 245, subd. (a)) and finding he used a firearm in the commission of the crime (Pen. Code § 12022.5).

The major issue is whether a requested, but denied, jury instruction properly related particular facts to the legal issue of identity (see People v. Sears, 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847) or improperly singled out their testimony of a witness and charged the jury how his testimony should be considered (People v. Lyons, 50 Cal.2d 245, 271, 324 P.2d 556; People v. Grant, 11 Cal.App.3d 687, 690, 89 Cal.Rptr. 784, disapproved on other grounds in People v. Beagle, 6 Cal.3d 441, 451--452, 99 Cal.Rptr. 313, 492 P.2d 1).

Smith shot James A. Chaves in front of a taco restaurant. Chaves, accompanied by a lady friend named Thomas, had backed his car into a Volkswagen occupied by Walker, the driver, and Fowler, a passenger. Chaves and Walker had a conversation about the accident and exchanged driver's license information.

As Chaves was walking back to his car to leave, he was interrupted by another person, Crowel, who with Smith had walked over to him. Chaves and Crowel heatedly exchanged words regarding the accident. Smith then pointed a pistol at Chaves and told him to tell his friend (Thomas) to get out of the car and to give him the keys. Instead, Chaves got into his car, told Thomas to lock her door, locked his door, and reached for the ignition when Smith shot him in the heck.

Smith and Crowel ran away. Chaves drove himself to the hospital. Walker took Fowler home and then went to his own home.

At trial, Chaves, Walker, Fowler and Crowel identified Smith as the assailant. Eyewitness identification was the major issue at trial and the basis for Smith's conviction.

On the issue of identification, the trial court instructed the jury as follows:

'One of the issues in this case is the identification of defendant as the perpetrator of the crime. The prosecution has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of the identification. However, you, the jurors, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant weas the person who committed the crime, you must find the defendant not guilty.'

This instruction is nearly identical to a portion of the instruction requested by Smith. It also captures the spirit of CALJIC 2.91, 1 which was developed after the trial of this case for use where the only evidence of identification is the testimony of eyewitnesses (see also People v. Gomez, 24 Cal.App.3d 486, 490, 100 Cal.Rptr. 496).

However, Smith argues the trial court should have given the following additional instruction:

'In determining whether reasonable doubt exists as to the identification you may consider the following:

'(1) Any discrepancies or inconsistencies which you may find exist between the original description of the gunman and the actual description of Cleo Smith when arrested.

'(2) The opportunity the victim had to observe the gunman. Whether there was an adequate opportunity to observe the person will be effected (sic) by such matters as the victim's age and state of mind, the length of the observation and the lighting conditions available and the position of the parties.

'(3) Any occasion in which the victim failed to make an identification of the Defendant.

'(4) Any inconsistent or consistent statements which you may find in Mr. Chaves' testimony regarding the identification.

'(5) Any other evidence tending to prove reasonable doubt.'

Smith relies primarily upon People v. Guzman, 47 Cal.App.3d 380, 121 Cal.Rptr. 69, as support for his contention the trial court should have given, upon request, specific instructions on the Factors which affect eyewitness identification.

The trial court refused to give the instruction, concluding it called for a comment upon the credibility of particular witnesses.'

'3] A defendant is entitled to an instruction relating particular facts to any legal issue.' (People v. Sears, supra, 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 717, 465 P.2d 847, 853.) Accordingly, Smith was entitled to an instruction relating the identification of him by witnesses to the concept of reasonable doubt (People v. Roberts, 256 Cal.App.2d 488, 492--494, 64 Cal.Rptr. 70). Here an instruction was given which directed the attention of the jury to the identification evidence 'from a consideration of which a reasonable doubt of his guilt could be engendered.' (People v. Sears,supra, 2 Cal.3d 180,...

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  • People v. Hurley, 3482
    • United States
    • California Court of Appeals Court of Appeals
    • August 8, 1979
    ...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 CALJIC No. 2.91 underlines to the jury the fact the prosecution has th......
  • People v. Wright, 24087
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    • California Supreme Court
    • June 30, 1988
    ...593, 602-604, 165 Cal.Rptr. 463; People v. Watson (1979) 89 Cal.App.3d 376, 385-387, 152 Cal.Rptr. 471; People v. Smith, supra, 67 Cal.App.3d at pp. 48-49, 136 Cal.Rptr. 387; People v. Whittaker, supra, 41 Cal.App.3d at pp. 307-309, 115 Cal.Rptr. C. The Eyewitness Identification "Factors" I......
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    • United States
    • California Supreme Court
    • July 25, 1979 certain testimony of a witness should be considered. (See People v. Lyons (1958) 50 Cal.2d 245, 324 P.2d 556; People v. Smith (1977) 67 Cal.App.3d 45, 136 Cal.Rptr. 387; People v. Young (1948) 88 Cal.App.2d 129, 198 P.2d 384.)8 Language in People v. Richardson (1978) 83 Cal.App.3d 853, ......
  • People v. Vindiola
    • United States
    • California Court of Appeals Court of Appeals
    • August 8, 1979
    ...the issue and the language of Guzman. (See People v. Kelley (1977) 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457; People v. Smith (1977) 67 Cal.App.3d 45, 49, 136 Cal.Rptr. 387; People v. Boothe (1977) 65 Cal.App.3d 685, 689-690, 135 Cal.Rptr. Moreover, it would appear that much of the requeste......
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