Brief Bank # B-544
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Division 3
PEOPLE OF THE STATE OF CALIFORNIA,
No. AO53697
Plaintiff and Respondent,
Superior Court
v. No. 12056
Marin County
DAVID W. P.,
Defendant and Appellant.
/
APPELLANT’S OPENING BRIEF
On Appeal From the Judgment of the Superior
Court of the State of California
In and For the County of Sacramento
HONORABLE RICHARD H. BREINER, JUDGE
THOMAS LUNDY
Attorney at Law
115 Fourth Street
Santa Rosa, CA 95401
(707) 544‑6942
Attorney for Appellant
DAVID W. P.
By Appointment of Court of Appeal
Under the First District Appellate Program’s
Independent Case System
II
THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER
THE AGE DIFFERENTIAL AND “WEAPON FOCUS EFFECT”
IN EVALUATING THE EYE-WITNESS TESTIMONY
Defendant P. requested that CALJIC 2.92, which describes the factors relevant to eye‑witness identification, be modified to include several additional factors not included in CALJIC 2.92.[5] Included in the factors to be considered in the defense proposed instruction were “the age difference between the witness and the perpetrators” and “whether a weapon was used in the offense.”
However, the court deleted the second paragraph of the proposed instruction as argumentative. (RT V:74.) The court also deleted the references to age differential and presence of a weapon as factors for the jury to consider. (RT V:74.) Deletion of these factors was prejudicial error.
In People v. McDonnell (1984) 37 Cal.3d 351, 377, fn. 24, the Supreme Court stated that “The defendant may be entitled to a special instruction specifically directing the jury’s attention to other evidence in the record — e.g., facts developed on cross‑examination of the eye‑witnesses — that supports his defense of mistake in identification and could give rise to a reasonable doubt of his guilt.” In People v. Wright (1988) 45 Cal.3d 1126, 1141, the Supreme Court held that “A proper instruction on eye witness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.”
While CALJIC 2.92[6] provides a listing of potentially relevant factors, the factors listed in the CALJIC instruction are obviously not intended to be exclusive. In fact, the CALJIC Committee recognized this by including blanks for insertion of additional relevant factors not covered by 2.92. For example, it has been held that the failure of an eye witness to attend a pretrial lineup is a basis for a viewing that witness’ testimony with caution. (People v. Fernandez (1990) 219 Cal.App.3d 1379, 1384‑1385.) Moreover, in People v. Frank (1990) 51 Cal.3d 718, 739, the Supreme Court suggested that a defendant may obtain instruction upon additional factors relevant to identification if it is shown that the requested matters are not covered in CALJIC 2.92.
In the present case, the eye witness identification expert testified that both age differential between the witness and the perpetrator as well as the presence of a weapon are factors which are relevant to the reliability of the identification. As to age differential, the expert observed that “you have the same focus on gross features which are of little utility in distinguishing one face from the other when there are marked discrepancies in age, much as you do when there is a discrepancy in race.” (RT IV:57‑58.)
As to the presence of a weapon, the expert testified as follows:
“Turning to our bank robbery, the presence of a weapon will often absorb the viewer’s attention. The bank teller can describe this gun in great detail, but nothing about the face of the man holding it. Perhaps, as a safety valve, protective device, all of the attention goes to the weapon rather than to the face. [¶] So, when there is a weapon involved we find people seem to be less reliable and conversely more impoverished in their discussions of the other factors.” (RT IV:53.)
Hence, the record adequately demonstrates that both age differential and presence of a weapon are relevant to the reliability of eye witness identification. Accordingly, because both these factors were relevant to the identification in the present case and because these factors are not included in CALJIC 2.92, the defense had a right to specific instruction upon these factors. The court’s deletion of these factors from the requested instruction was error.
The error was prejudicial because the identification of appellant P was suspect. Witness T was unable to identify P at trial and stated at the preliminary hearing that P did not look familiar to her and “did not resemble the smaller robber.” (RT II:67‑68.)[7]
In light of the above discrepancies in the identification of appellant P, the refusal to instruct the jury upon important factors which were relevant to the reliability of the eye witness identification was prejudicial error. Moreover, even if the error was not prejudicial by itself, when combined with the highly prejudicial admission of a dissimilar prior offense (see Argument 1, ante) the cumulative impact of the errors was prejudicial. (See People v. Holt (1984) 37 Cal.3d 436, 449; People v. Vindiola (1979) 96 Cal.App.3d 370,386.)
[5] The requested instruction provided as follows:
“Eye witness testimony has been received in this trial for the purpose of identifying the defendants as the perpetrators of the crimes charged. [¶] In determining the weight to be given eye witness identification testimony, you should consider the believability of the eye witness as well as other factors which bear upon the accuracy of the witness’s identification of the defendants, including but not limited to: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrators of the act, including such factors as lighting, distances, obstructions, distractions, and duration of observation; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness’s ability, following the observation, to provide a description of the perpetrators of the act; [¶] The extent to which the defendants either fit or do not fit the description of the perpetrator previously given by the witness; [¶] The cross‑racial or ethnic nature of the identification; [¶] The witness’s capacity to make an identification; [¶] Evidence relating to the witness’s ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic line-up or in a face-to-face encounter; [¶] Any occasions on which the witness failed to make an identification of a defendant or made an identification inconsistent with his or her identification at trial; [¶] The period of time between the alleged criminal act and the witness’s identification; [¶] Whether the witness had contacts with the perpetrator prior to the offense; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶] Whether the witness’s identification is in fact the product of his or her own recollection; [¶] Any other evidence relating to a witness’s ability to make an identification.” (Defendant’s special requested instruction no. 2, pp. 4‑5; The original requested form of this instruction was not included in the record on appeal but a copy is contained in the settled statement requested by appellant.)
[6] CALJIC 2.92 provides as follows:
Factors To Consider In Proving Identity By Eye Witness Testimony
Eye witness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eye witness identification testimony, you should consider the believability of the eye witness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following:
[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]
[The stress, if any, to which the witness was subjected at the time of the observation;]
[The witness’ ability, following the observation, to provide a description of the perpetrator of the act;]
[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]
[The cross‑racial or ethnic nature of the identification;]
[The witness’ capacity to make an identification;]
[Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act;]
[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]
[The period of time between the alleged criminal act and the witness’ identification;]
[Whether the witness had prior contacts with the alleged perpetrator;]
[The extent to which the witness is either certain or uncertain of the identification;]
[Whether the witness’ identification is in fact the product of [his] [her] own recollection;]
[____, ____, ____, ____, ____, ____.]
Any other evidence relating to the witness’ ability to make an identification.
[7] At trial, Taber testified that P was of smaller stature and size to the robber but she was unable to get a good look at him. (RT II:40-43.) Witness W did identify P at trial but was unable to identify him at a photo lineup. (RT III:8‑9, 20‑21, 24‑26.) Moreover, W’s testimony that he had an opportunity to observe the smaller robber in the office and by the exit doors when the robber was acting as a lookout was contradicted. (See AOB 10‑11, ante.) Finally, witness K testified at the preliminary hearing that P was not the robber. (RT III:153.) And, he gave a description of the smaller robber which was inconsistent with P’s appearance. (See AOB 25‑26, ante.)