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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Phillip Neil FREEMAN, Defendant and Appellant.*

Cr. 17223.

Decided: January 31, 1978

Douglas R. Schmidt, Winslow & Schmidt, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Phillip Neil Freeman appeals from a judgment by which he was committed to the Youth Authority after a jury found him guilty of robbery (Pen.Code, s 211).

Appellant entered a 7-11 Store at about 10:30 in the evening and menaced the clerk with a pellet pistol. The clerk put money in a paper bag for appellant. Although appellant was wearing a stocking mask, the clerk was able to recognize him from previous contacts “in the general area and in the store.”

After the robbery the clerk went home and looked in his high school yearbook, thinking that appellant might have attended the same school. He picked out as resembling appellant the picture of appellant's brother, John Freeman.

The robbery scene itself was preserved in a photograph which was taken automatically when money was removed from the cash drawer.

Investigation revealed that John Freeman had been out of town on the night of the robbery. The high school dean of students, who knew both John and appellant, looked at the robbery picture and advised an investigating officer that the picture resembled appellant more closely than it did his brother.

The robbery victim picked appellant's photograph from a pretrial photographic display and identified appellant positively at trial.

Searching pursuant to a warrant, investigating officers obtained from appellant's home a pellet pistol and a shirt which resembled that worn by the robber as shown in the contemporaneous photograph. The victim identified the pistol from its appearance and from a clattering sound it made when handled.

Appellant offered an alibi defense supported by his own testimony and that of family members.

Appellant contends that there is no substantial evidence to support the verdict finding him guilty of first degree robbery. But the victim of the robbery unequivocally identified appellant as his assailant. That testimony was sufficient. (People v. Daniels (1963) 223 Cal.App.2d 441, 445, 35 Cal.Rptr. 890.) It is suggested by appellant that the pistol may have been inoperable and that the jury therefore should not have found him guilty of first degree robbery. But the record contains no evidence that the weapon was inoperable. Therefore, appellant's contention must be rejected.

More substantial is appellant's contention that the court should have instructed on alibi1 even though no such instruction was requested. An instruction on alibi, and one relating reasonable doubt to the identification issue, should have been given if requested. (People v. Roberts (1967) 256 Cal.App.2d 488, 493, 64 Cal.Rptr. 70.) But an instruction on alibi need not be given in the absence of a request by the defense. (People v. Whitson (1944) 25 Cal.2d 593, 603, 154 P.2d 867.)

We note that in People v. Rubio (1977) 71 Cal.App.3d 757, 770-771, 139 Cal.Rptr. 750, the Court of Appeal in the Second Appellate District has stated the view that the above-cited holding of the California Supreme Court in People v. Whitson, supra, has been overruled in People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913, and People v. Stewart (1976) 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317. We are unable to adopt the view expressed in Rubio. An alibi defense does not present any “independent affirmative defense; that is, the alibi cannot be considered by itself, but must be considered in connection with all other evidence in the case. (Citation.) For this reason, in the absence of a request for a specific instruction on alibi, it is sufficient that the jury be instructed generally to consider all the evidence in the case, and that defendant is entitled to an acquittal in case of a reasonable doubt whether his guilt is satisfactorily shown.” (People v. Branch (1962) 205 Cal.App.2d 688, 691, 23 Cal.Rptr. 342, 344, emphasis in original.) We find nothing in the opinions of the Supreme Court in People v. Stewart, supra, and People v. Sedeno, supra, to suggest that the court intended to create a new requirement of sua sponte instruction in any case where there is alibi evidence. An alibi does not present a legal defense which may not be comprehended by the jury unless special instructions are given; on the contrary, it merely creates a conflict in the evidence to be resolved by the jury under the general instructions dealing with such conflicts. (People v. Hoffmann (1970) 7 Cal.App.3d 39, 47, 86 Cal.Rptr. 435.)



1.  CALJIC No. 4.50: “The defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.”

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RAGAN, J.,* concur.