PEOPLE v. MOLINA (1981)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County.   Leonard Irving Meyers, Judge.   Affirmed.

Appellant George Molina was convicted by a jury of robbery and found to have personally used a deadly and dangerous weapon in its commission.

Elizaide Bautista was drinking in March 1979 in the Chinatown area of Fresno and, about 3:00 a. m., went to eat at the La Flora de Mexico restaurant.   While emerging from his automobile, two men assaulted him, one placing what he thought was a knife at his throat, the other placing a knife at his back.   Forcing him into his car again, one assailant held him and the other went through his pockets and took some $65 cash, a watch and two rings.

Bautista recognized appellant because Bautista had seen him three-four times in that particular neighborhood, and because, as he testified to over objection, he had seen appellant eight or nine years earlier assault and rob a young man on a street in that neighborhood.   That incident, Bautista indicated, left a forceful impression in his mind.   As well, Bautista noted one of his assailants was wearing a dark colored “city hat.”   Appellant, when arrested, was wearing a dark hat and carried a buck knife.

After the robbery, the two assailants fled and appellant threatened Bautista before departing.   They were on foot and Bautista followed them in his car, confronted them with the aid of a tire iron and bystanders, only to have a small sports car pull up and its occupants order the release of the two assailants at gunpoint.   The assailants and their rescuers fled in the sports car but, strangely, the sports car later returned, parking behind Bautista's automobile.   This event occurred while Bautista was giving his account to a security guard.   The sports car fled again, after the security guard noted in writing its license number.   A police officer could not locate the sports car despite a prompt attempt, and Bautista, while continuing his account to officers, noted the reappearance of his assailants entering the La Flora Cafe.

The officers detained two men, one of them appellant, searched and found the buck knife, obtained a positive identification from Bautista and arrested appellant.   No stolen property was recovered.

Bautista claimed that despite his imbibing of beer, the darkness of the night, less than 30 seconds to observe his assailants and the enormity of the events occurring to him, he could recall appellant because of an event occurring some eight years ago when Bautista saw appellant and another “roll a drunk” in the same vicinity as this crime.   On that occasion, he was waiting for a bus to the fields, was about 15–18 feet from the event as it occurred at 4:00 a. m., was sober, and particularly noticed appellant's skin color.

The trial judge, after a hearing out of the presence of the jury, permitted the testimony, finding Bautista's recounting of the earlier incident was “highly probative on the question of identification.”   The trial judge also noted the issue was a close one and read an instruction to the jury immediately after Bautista's testimony concerning the prior robbery.¹

Appellant presented an alibi defense, which was corroborated by his girl friend and her girl friend.   The other person arrested with appellant was a total unknown to appellant.

On appeal, appellant claims reversible error in permitting Bautista's testimony regarding the prior uncharged misconduct.

Chief Justice Bird, in People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, told trial judges that admissibility of uncharged offenses, whether occurring before or after the offense for which the defendant is presently on trial, “must be ‘scrutinized with great care’ ” and that “ ‘a closely reasoned analysis' of the pertinent factors must be undertaken before a determination can be made of its admissibility.”  (Id., at p. 314, 165 Cal.Rptr. 289, 611 P.2d 883, fns. omitted.)

The time necessary for that kind of analysis is woefully short during a trial.   The pressures to return to the courtroom to proceed with evidence taking, to end further inconvenience to witnesses, and to retain the jury's interest in the proceedings, is well nigh unbearable.   Trial judges need clear rules, relatively easy to apply.   Without such rules, the chances for error and reversal increase exponentially.   To aid trial judges, the Chief Justice counselled that whenever they are presented with an offer of prior uncharged conduct, as with other types of circumstantial evidence, the judge must consider three principal factors in determining its admissibility:

“(1) the materiality of the fact sought to be proved or disproved;

“(2) the tendency of the uncharged crime to prove or disprove that material fact;  and

“(3) the existence of any rule or policy requiring the exclusion of relevant evidence.”  (People v. Thompson, supra, 27 Cal.3d at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883, emphasis in original.)

As to materiality, the trial judge must first determine what the ultimate fact is and whether there is any dispute about it.   In Thompson, the issue of the defendant's specific intent to steal was an issue because defendant denied any intent to steal.   In the instant case, the ultimate fact to be determined by the jury was whether appellant robbed Bautista.   Appellant placed that ultimate fact in issue by denying he committed the crime.

As to relevancy, the trial court must “ ‘examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.’ ”  (People v. Thompson, supra, 27 Cal.3d at p. 316, 165 Cal.Rptr. 289, 611 P.2d 883, quoting People v. Schader (1969) 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841.

In People v. Thompson (1979) 98 Cal.App.3d 467, 159 Cal.Rptr. 615, defendant was convicted of furnishing marijuana to a minor while the jury hung on another charge.   He denied any such event occurred.   The question for the jury was who to believe—defendant or the victim?   For purposes of corroborating the credibility of the victim, the court permitted, over objection, the testimony of the victim and a third party that before the dates of the charged crimes defendant had supplied marijuana to them.   There, too, the trial judge instructed the jury the testimony of the prior marijuana use was introduced only for limited use of “ ‘whatever evidentiary value it may have in your opinion regarding the credibility of’ ” the victim.   The Court of Appeal reversed.

From prior misconduct, we infer the likelihood a defendant will repeat it.   The theory is simply that humans tend to repeat behavior.   Writing for the court, Judge Bernard Jefferson noted Evidence Code section 1101, subdivision (a),² absolutely forbids such disposition evidence to prove specific conduct.   However, where some other basis of relevancy exists, for example, the enumerated instances in Evidence Code section 1101, subdivision (b), then disposition evidence can be admitted because of that other relevancy.  Section 1101, subdivision (c), disclaims any intent for any of section 1101 to affect admissibility of evidence relevant to credibility.   That problem, the Law Revision Commission stated, was controlled by Evidence Code sections 786–790.  Section 786 forbids the use of character traits to attack credibility, but that prohibition does not forbid use of a witness' character traits for honesty or dishonesty, veracity or lack of veracity.   And this limited use of character evidence is further narrowed by section 787, which forbids the use of specific instances of conduct ³ to attack or support credibility.

So the recounting by the victim and third party of the defendant's past furnishing of marijuana could not be admitted to attack the defendant's credibility.   Why?  Because section 787 would forbid it.  (People v. Thompson, supra, 98 Cal.App.3d 467, 476, 159 Cal.Rptr. 615.)

Likewise, in the instant case, once appellant testified as to his alibi defense, evidence of his alleged prior assault could not be admitted to attack his credibility.

In Justice Jefferson's Thompson case, he could find no authority in Evidence Code section 780 justifying admissibility of the prior misconduct to support the testimony of the victim on the charged occasions and went on to discuss whether such corroborative evidence was independently admissible to prove credibility.   That decision held it was not because such a holding of its admissibility would lead to the emasculation of Evidence Code section 1101, subdivision (a).  (People v. Thompson, supra, 98 Cal.App.3d at p. 481, 159 Cal.Rptr. 615.)   However, he did discuss the admissibility of a defendant's prior misconduct with the victim and with third parties, concluding there was case authority for holding that if grounds of admissibility other than credibility were found the evidence could also be used to support credibility.  (Id., at pp. 477–480, 159 Cal.Rptr. 615).

While Evidence Code section 780 did not support admissibility in Justice Jefferson's Thompson case (People v. Thompson, supra, 98 Cal.App.3d at p. 477, 159 Cal.Rptr. 615), that section does here because it provides:

“Except as otherwise provided by statute, the ․ jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove ․ the truthfulness of his testimony ․, including ․:

“․

“(d) The extent of his opportunity to perceive any matter about which he testifies.”

Dean Wigmore gives the following example:

“The party offering a witness may desire to make plain the strength of the witness' grounds of knowledge and the reasons for trusting his belief.   This is a legitimate purpose.   But, in pursuing it, the witness often will naturally state circumstances which may give indirectly some unfavorable impressions against the opposite party—as where the witness is asked, ‘What made you notice the defendant's features?’ and replies, ‘Because he was the same man who stole my wagon last year.’ ”  (2 Wigmore, Evidence (Chadbourn rev.1979) § 655, pp. 884–885.)

People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905 is the clearest California case adopting Dean Wigmore's proposition.   There, the victim trucker was highjacked at gunpoint.   He recognized his assailant as the same person who had been tried for and acquitted of a similar type highjacking involving the victim some 18 months before.   His assailant told the victim “this time” he would be killed, and later ordered an accomplice to kill the victim because he had recognized the assailant.   Identification was the issue and the court held the victim's prior episode “materially buttressed” the victim's identification.  (Id., at p. 632, 105 Cal.Rptr. 681, 504 P.2d 905).⁴

Since we conclude Bautista's testimony concerning the eight-year-old uncharged robbery was analogous to both Dean Wigmore's example and Beamon and was therefore relevant and admissible to bolster the victim's identification, we must yet inquire whether the trial court should have excluded the testimony under Evidence Code section 352 in that “uncharged offenses are admissible only if they have substantial probative value” and “[i]f there is any doubt, the evidence should be excluded.”  (People v. Thompson, supra, 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883, emphasis in original.)

What more effective method could have been used to support Bautista's ability to identify appellant other than the manner employed?   We agree the trial court could find substantial probative value, and therefore properly admitted Bautista's testimony.   We conclude this even in the face of the age of the prior uncharged conduct and the fear that any of us would be hard put to prove we committed no robbery on any particular night eight or nine years earlier.

The trial court could have exercised its discretion to admit or exclude Bautista's testimony, and neither ruling would have been erroneous.   Having opted for admission, the trial court's reading of its version of CALJIC No. 2.50 was the proper prophylactic measure.   It seems to us the trial judge's handling of the problem was a model of its kind.

Finding no error, the judgment of conviction is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   “THE COURT:  To clarify this for the jury, this evidence is not admitted for the purpose of establishing a prior wrongful act on the part of Mr. Molina or evidence of his character.   It is admitted solely and only for the purpose of supporting the testimony of this witness that he has seen this person on prior occasions, and to support his identification.   The jury may not consider this description of another incident for any other purpose.   It has nothing to do with this case except as it may assist you in determining the value of the present testimony of identification, because that is the sole purpose of the testimony.   The objection is overruled.   Of course you may go into that on cross-examination.”

2.   Evidence Code section 1101 reads:“(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”

3.   Evidence Code section 787 subjects itself to section 788.   That section does in one limited area—admissibility of prior felony convictions which are, of course, a specific instance of conduct—permit the use of specific conduct to attack credibility.

4.   The Supreme Court also validated the admissibility of the prior uncharged conduct on the basis of a distinctive modus operandi common to the uncharged crime and the charged crime.   It, however, noted one similarity as being the same perpetrator (People v. Beamon, supra, 8 Cal.3d at p. 633, 105 Cal.Rptr. 681, 504 P.2d 905), and thus assumed the answer, the identity of the perpetrator to be the victim's assailant.   It seems to us the better practice is to ask whether the highly distinctive common marks, irrespective of knowing the identity of the perpetrator of the uncharged offense, make it reasonably probable the perpetrator of the uncharged offense must be the same person who committed the charged offense.

WOOLPERT, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

GEO. A. BROWN, P. J., and PAULINE DAVIS HANSON, J., concur.