People v. Wright, 24087

Decision Date30 June 1988
Docket NumberNo. 24087,24087
Citation755 P.2d 1049,45 Cal.3d 1126,248 Cal.Rptr. 600
CourtCalifornia Supreme Court
Parties, 755 P.2d 1049 The PEOPLE, Plaintiff and Respondent, v. Carl A. WRIGHT, Defendant and Appellant. Crim.

Peter R. Silten, Deputy State Public Defender, San Francisco, for defendant and appellant.

Catherine A. Riulin, Deputy Atty. Gen., Office of Atty. Gen., San Francisco, for plaintiff and respondent.

LUCAS, Chief Justice.

In this case we consider whether the trial court erred in rejecting five special jury instructions which defendant requested relating to the accuracy of eyewitness identifications. Defendant was convicted of armed robbery and related offenses in connection with a robbery at gunpoint by several masked men. The sole evidence against him at trial was eyewitness identification.

We conclude that the court correctly declined to give four of the five requested instructions. We also conclude that the court erred in failing to give an instruction listing the factors the jury could consider in evaluating eyewitness identifications, but we find the error was harmless.

I. FACTS

Defendant was charged with participating in the armed robbery of 11 employees of a wholesale beverage company in the company's warehouse and office building. His defenses were mistaken identification and alibi. The jury found him guilty of nine counts of armed robbery, two counts of attempted armed robbery, and one count each of assault with a deadly weapon and false imprisonment.

During the robbery, a group of men armed with handguns and wearing stocking masks burst into the company's warehouse, forced the employees to lie on the floor, and demanded their money. Some of the robbers then proceeded to the main office where they ordered the office employees to the floor and again demanded money. In addition, they forced one employee to open the company safe, and removed money from it. They also demanded jewelry from the victims. The robbers left the scene about 20 minutes after they arrived.

Three of the eleven employees present at the robbery identified defendant as one of the robbers. Stephanie Sung, the employee who opened the safe, was able to identify two of the robbers. As she went to the safe and opened it, she came "face to face" with one of them. She was able to observe this man's face through his black stocking mask, which, she testified, "wasn't very tight" and "didn't really smash his features." She also saw the face of a second robber as she returned from opening the safe. Later on the day of the robbery, she selected from a photo spread two photographs as resembling the robbers whose faces she had seen. One of these was defendant's photo, which Sung testified looked like the robber she saw as she opened the safe. She testified that at a lineup a week later she recognized defendant and was "75 percent sure" he was the robber she had seen at the safe, but she did not sign her lineup card, believing she had to be "a hundred percent sure" in order to sign it. 1 During Sung's testimony, at the prosecutor's request, defendant put a stocking mask over his face. Based on this in-court demonstration, Sung positively identified defendant as the robber she had seen at the safe.

Witness Erica Albertsen saw a man wearing a black stocking mask run toward her through the office door. The man grabbed her shoulders, lifted her up, and pushed her to the floor. She stated his mask did not hide his face, and she could see "very clearly" through the mask. She identified defendant as the robber she saw. She testified she had not seen a photo of defendant in the postrobbery photo spread, and that at the police lineup conducted later she was "amazed" to see defendant. At the lineup, she immediately recognized defendant as the robber she had seen. Further, she explained that her description of defendant at the preliminary hearing was from memory, given while defendant was hidden from her view.

Peter Marino also testified that defendant was one of the robbers, although he made a weaker identification. He picked defendant's photograph from the photo spread, saying, "this man [defendant] was in the warehouse that morning." At trial, he said that he could not specify which one of the group of robbers was defendant, but testified, "I believe [defendant] was in the robbery that day."

The eight other victims of the robbery testified that they were unable to say whether or not defendant was one of the robbers. The testimony of all the eyewitnesses will be discussed more fully where relevant below.

Defense counsel used a model to demonstrate the effect of the stocking masks. The model put on several masks, giving the jury an opportunity to observe how they distorted or otherwise affected the wearer's facial features. As noted, when the prosecutor had the defendant model a stocking mask, Stephanie Sung was able to identify him positively.

Defendant did not testify at trial. His wife testified that on the day of the robbery he was with her all day, sleeping most of the morning, and then decorating a bar for a birthday party. Defendant's sister-in-law testified that she had also been with defendant and his wife decorating for the party. Their testimony was uncorroborated and somewhat weak. 2

Defendant was tried together with a codefendant charged with participating in the same robbery. The case against the codefendant was also based on eyewitness identification testimony. The presentation of evidence took about eight days. The jury, after deliberating less than one day, found defendant guilty on all counts, but it was unable to reach a verdict as to the guilt of the codefendant. Defendant appealed on the sole ground that the trial court committed reversible error by refusing to give his five requested special instructions on eyewitness identification.

II. DISCUSSION
A. Defendant's Special Instructions Nos. 1 and 4

Requested instructions Nos. 1 and 4 state that the prosecutor has the burden of proof on the issue of identity. 3 They essentially duplicate each other; more importantly, they also duplicate former CALJIC No. 2.91 4 (prosecutor's burden of proving beyond a reasonable doubt the accuracy of eyewitness identifications) which the court gave. (Post, at p. 614 of 248 Cal.Rptr., at p. 1063 of 755 P.2d.) Defendant argues that his instruction No. 1 would additionally inform the jury that the identity of the criminal is an element of the crime; but this point is plainly implied by the statement in former CALJIC No. 2.91 that the prosecution has the burden of proving such identity beyond a reasonable doubt.

Defendant also notes that instruction No. 4 would tell the jury he need not prove his innocence or another's guilt; but the court stated this rule in CALJIC No. 2.90, which defines the presumption of innocence and the prosecutor's general burden of proof beyond a reasonable doubt. Defendant's special instructions Nos. 1 and 4 are thus repetitious of instructions already given, and the trial court correctly refused them on this ground. (People v. Martinez (1987) 191 Cal.App.3d 1372, 1378-1379, 237 Cal.Rptr. 219; People v. McCowan (1978) 85 Cal.App.3d 675, 679-680, 149 Cal.Rptr. 611.)

B. Defendant's Special Instruction No. 2

Defendant's second proposed instruction lists certain specific items of evidence introduced at trial, and would advise the jury that it may "consider" such evidence in determining whether defendant is guilty beyond a reasonable doubt. 5 The court refused to give this instruction because it is argumentative, i.e., it would invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.

The court ruled correctly. In People v. McNamara (1892) 94 Cal. 509, 29 P. 953, a defendant charged with robbery was identified at trial by the victim. The court refused to give a proposed defense instruction telling the jury that in determining whether it had a reasonable doubt of the identity of the assailant it should "consider" specific evidence listed in the instruction, for example, that the victim was the sole witness to identify the defendant, that the victim was a stranger to the city, and the victim's "condition of sobriety or insobriety"; and that the defendant did not flee the city after the crime, but expressed his willingness to help recover the property and capture the robbers. (Id., at pp. 513-514, 29 P. 953.) We held the instruction was properly rejected as argumentative. We disapproved of "the common practice [of] select[ing] certain material facts, or those which are deemed to be material, and endeavoring to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law," and we explained, "An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue." ( Id., at p. 513, 29 P. 953; accord, People v. Hill (1946) 76 Cal.App.2d 330, 342, 173 P.2d 26; see also People v. Slocum (1975) 52 Cal.App.3d 867, 893, 125 Cal.Rptr. 442.) 6

The foregoing rule was not undermined by the 1934 constitutional amendment permitting a trial court to "make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause." (Cal. Const., art. VI, former § 19, now § 10.) We deal here with an instruction, not a judicial comment; although such a comment may address matters of fact, an instruction may not. 7 "[I]t is not a matter of law for the judge to say that certain evidence might give rise to a reasonable doubt as to the affirmative of an issue required to be proven by the prosecution. That is a comment on the evidence and any such comment should be identified as such." (people v....

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