PEOPLE v. WRIGHT (1987)

In People v. McDonald (1984) 37 Cal.3d 351, 375–377, 208 Cal.Rptr. 236, 690 P.2d 709, we held that in appropriate cases it is error to exclude expert testimony on psychological factors shown by the evidence that may affect the accuracy of an eyewitness identification of the defendant.   We left open the question of the propriety of jury instructions on such factors.  (Id. at p. 377, fn. 24, 208 Cal.Rptr. 236, 690 P.2d 709.)   Addressing that question in the case at bar, we hold that the court erred in denying defendant's request for instructions cautioning the jurors on the dangers of mistaken identification and focusing their attention on such factors, and that on the record of this case the error is prejudicial.

At 11:30 a.m. on June 8, 1982, a gang of masked men entered the premises of a wholesale beverage company in San Francisco and robbed its 11 employees at gunpoint.   Defendant and one Victor Wellington were jointly charged with being two of the robbers.   The sole issue at trial was identity.   No physical evidence linking defendant to the crime was introduced.   All the robbers wore stocking masks, and throughout the events they took pains to prevent the employees from seeing their faces.   In these circumstances it is not surprising that most of the victims were unable to identify anyone.¹  Three of the employees did identify defendant with varying degrees of certainty, but in the testimony of each there were factors that could have raised reasonable doubts in the minds of the jurors as to the accuracy of the identification.   The defense also presented alibi witnesses who testified that defendant was in their company at the time of the crime.   Because of these discrepancies and their bearing on the issue on this appeal, we set forth the relevant testimony in some detail.

Peter Marino testified he was in the warehouse with three other employees when a young Black man came in through the rear door and demanded their money at gunpoint.   The man wore a stocking mask pulled down below his chin.   After the four employees gave him their cash, he told each to lie on the floor and directed them not to look at him.   When the witness nevertheless glanced up, a coat was thrown over his face.   A second Black man came in, also wearing a stocking mask and carrying a gun, and the employees were compelled to give up their jewelry.   A third armed and masked Black man then entered with another employee and forced him to lie down with the others.   Two of the robbers then left and Marino heard the remaining man apparently talking to a fourth person outside the warehouse.   Some 20 minutes after they arrived, the robbers departed.

That afternoon Inspector Cisneros showed Marino a group of photographs;  he selected a photograph of defendant as resembling one of the robbers who had been in the warehouse, but testified that “I could not tell you which one he was.”   At the preliminary hearing he testified he could not positively identify defendant as one of the robbers, or indeed anyone else at the scene.   Yet when asked at trial if any of the robbers was in the courtroom, the witness replied, “I believe Carl Wright [defendant here] was in the robbery that day.”

On cross-examination Marino admitted that the robbers all wore tight-fitting stocking masks, and that because of such masks he was unable to make out the features—either eyes, nose, or mouth—of any of their faces.   He conceded that at the preliminary hearing he was shown a group of photographs and asked to pick out the one he had selected on the day of the crime for Inspector Cisneros, but that the photograph he thereupon selected turned out to be of someone other than defendant.   He further acknowledged that the first time he saw defendant in court was on July 22, 1982, at a preliminary hearing that was continued to July 29, and that on the latter date he testified he did not recall having seen defendant before their encounter in court a week earlier.

On redirect examination Marino testified when he first saw defendant in court he did not recognize him, and that his belief that defendant “was somewhere in that warehouse” was not based on viewing defendant in person but solely “On the picture that I saw.”

Finally, the court itself inquired into the question of identification.   In reply to a query about the effect of the stocking masks, Marino explained that they pressed tightly on the wearer's skin and “The face looked like it was drawn.”   When asked if he could see through the mask enough to give an opinion as to the identity of the wearer, the witness replied that he could not.   But when the court asked whether it was nevertheless his opinion that defendant was one of the masked men, the witness answered:  “I believe so, and how, I don't know.   With three people in the room yelling and screaming somewhere I saw the face.   How I saw it, where he was at, I can't tell you.”   He insisted he had seen defendant at the scene, even though in such circumstances he agreed “you don't get a full look at everybody and you're scared.”

The other four employees who were in the warehouse with Marino all testified in turn, but none identified defendant or his codefendant as being among the robbers.   Thus Joe Caminita testified that he encountered a Black man wearing a stocking mask who put a gun to his head, made him lie facedown on the floor, repeatedly told him, “Don't look at me,” and took his money and valuables.   Although several of the robbers were present, the witness could not make out any faces because he “Definitely could not see through their masks.”   He also testified he was frightened and “wasn't thinking about identifying” anyone.

Burt Treanor testified he first saw a masked Black man holding a gun on Marino;  the man then told him to lie facedown, and took his money.   He heard other men moving about the room, but he was unable to identify any of the robbers.   The witness explained that “Once I noticed the gun, that was it․  I just kept staring at the gun.”

John McLaughlin testified to the same effect.   Although he watched the first robber move around the room collecting the loot, and the man stood directly in front of him while relieving him of his money, the witness paid no attention to the man's face because “I was looking at a gun.”   He then lay facedown on the floor as directed;  when he heard another person enter he looked up but again all he noticed was the gun in that person's hand, “a lot bigger than the first one.”   He put his head down and closed his eyes.

Joe Marino, brother of the first witness, testified to an essentially similar sequence of events.   He could not see the facial features of any of the robbers, and in fact was not even looking at them for that purpose:  “At that time I wasn't looking for anything to go to court on to say, ‘Hey, that was the man right there.’ ”   He explained, rather, he was looking at the gun because he was concerned his brother might get hurt.   The witness was unable to identify anyone from the photographs shown to him after the robbery by Inspector Cisneros, or indeed ever since.

The remaining five witnesses were all in the main office building of the company.   Edward Derry, the general manager, testified that a masked Black man entered his office with a gun and demanded money.   When asked if he got a good look at the man, Derry said no and explained, “I got a good look at the gun.   It was in my face.”   After the robber took his money a second masked man appeared, but the witness saw very little of him either, “because the gun was still in my face.”   The first robber then asked where the company safe was, and Derry led him to its location in another room.   In that room several women employees were already lying facedown on the floor, and Derry was compelled to join them.   The robbers demanded the key to the safe, and Derry instructed one of the employees, Stephanie Sung, to get it.   Every time Derry lifted his head, it was pushed back down by a man standing over him.   Because of the stocking mask, the witness was unable to see any of the robbers' features or identify anyone in court.

Stephanie Sung testified that someone grabbed her from behind, pushed her to the floor, and sat on her back;  she could not see the person restraining her.   After a few minutes she heard Derry tell her to get the key to the safe.   She was allowed to stand up, and someone pushed her into the next office where the key was kept;  the person pushing her ordered her to keep her head down at all times.   She retrieved the key and went to open the safe.   In so doing she came face-to-face for the first time with one of the robbers, whom she described as a young Black man with a narrow face.   She admitted that he was wearing a stocking mask and that she saw his face for only “a second or two,” but testified she could see his features despite the mask.   She became “very nervous” and had difficulty in opening the safe.   Eventually she managed to do so, and as she left the area she saw another robber's face for “a second or two.”   She was then compelled to lie down again, and could observe no other faces.

At trial Sung identified defendant as the first robber she confronted at the safe.   She testified that on the day of the robbery she was shown a group of photographs and picked out one of defendant as resembling that person because of the shape of his face.   She also testified she recognized defendant at a lineup a week later.   But she admitted she did not write his number on her lineup card (People's exhibit No. 20), as she had been told to do if she were able to make a positive identification;  when asked why not, she explained that she was only 75 percent sure that defendant was one of the robbers—“I wasn't a hundred percent sure it was him.”   At a second lineup six weeks later, moreover, she made a positive identification of someone other than defendant as the robber.

Erica Albertsen, the receptionist, testified she was sitting at her desk facing the wall, talking on the telephone, when she heard someone shout.   As she turned, an armed Black man ran around the desk and ordered her to drop the telephone and lie down on the floor.   She started to crawl under her desk, but he grabbed her shoulder from behind and pushed her facedown on the floor with the others.   At that point she “couldn't see anything but a lot of carpet.”   She subsequently heard voices demand her jewelry, but ultimately nothing was taken from her.

Albertsen identified defendant in court as the man who pushed her to the floor, saying she saw his face “very clearly” as he was running around her desk.   She acknowledged that she was “really scared and startled,” and that the man was wearing a black stocking mask that covered his face;  contrary to other witnesses, however, she claimed the mask “didn't pull his features tight.”   She explained that she could not recognize anyone other than this man because “he had the gun on me,” and she was able to describe the weapon in detail.   The witness identified defendant at a lineup a week after the robbery;  yet on the day of the crime she did not describe defendant to the investigating officers, and only two days later Inspector Cisneros showed her a photographic array containing a photograph of defendant but she failed to select that photograph.   Indeed, she admitted that “I told him definitely they weren't the robbers.”

None of the other three employees in the office identified defendant.   Thus Viola Hom testified she was accosted at her desk by an armed and masked intruder, who forced her to lie facedown on the floor.   At the time, she was wearing thick glasses designed only for reading.   She explained that “They wouldn't let me take my glasses off and I can't see nothing with my glasses.”   Rather, “everything was a blur to me.”   She could clearly see the barrel of the gun pointing at her, however, because it was only a “couple of inches” from her face.   She admitted she was frightened throughout the events and “was kind of like in a daze.”   After the robbery she was unable to identify anyone at a lineup, and she testified that she doubted she would be able to recognize any of the intruders if she ever saw them again.   Indeed, she stated on the witness stand—and therefore in defendant's presence—that she had not seen any of them since the day of the crime.

Sharon Hom, Viola's daughter, testified that an armed and masked man appeared in the office door and ordered her to the floor.   She could not see his features through his stocking mask and could not even tell his race.   She testified that the gun was pointed at her throughout the confrontation, and explained she was looking “Mostly at the gun more than his face.”   The man pushed her to her knees, with her head down;  she closed her eyes and covered her face with her hands.   Hearing voices threaten her and her fellow employees, she was “terrified.”   Although she offered her jewelry on demand, none was in fact taken.   After the robbery she told the police she could not describe any of the participants, and she identified no one at trial.

Janice Tong, wife of a police officer, positively identified codefendant Wellington.   She testified that an arm encircled her neck from behind and a man's voice ordered her to get down;  at the same time she saw two other men enter the office in front of her.   She was then pushed to the floor, but turned on her side and was able to see the ensuing events.   She watched while a third man pulled Derry from underneath a desk and demanded at gunpoint to be told where the money was.   The witness said that robber was Wellington.   She explained that she could make out his features because his stocking mask was not tight-fitting, and only his nose was slightly flattened;  she also described his clothes in detail.   She testified that she observed Wellington for “90 percent of the time” that the robbers were in the office, seeing his face from several angles.   On three occasions he heard her move, looked directly at her, and ordered her to keep still.   Later he came over to her, took her purse and emptied it on the floor, pocketing some of its contents.

Tong testified, moreover, that about one week before the robbery Wellington appeared unannounced in an area of the office reserved for employees;  she inquired if he needed help, and he asked for a job application.   He was wearing the same clothes that he wore in the robbery.   Following the crime she gave the investigating officers a description of Wellington, then selected his photograph from a photographic array and picked him out of a lineup.   She concluded by testifying that she had “no doubt” whatever that Wellington was one of the robbers.

Although Tong was able to observe several other participants, however, she could not identify anyone else at the scene.   In particular, she saw the man who accompanied Stephanie Sung to the safe, another man who squatted next to her to take her ring, and a third man who spoke to her as the robbers were leaving, but because of their masks she could recognize none of them.   She therefore did not identify defendant.

The prosecution offered no other evidence to connect defendant with the robbery.   The defense called two witnesses to establish that defendant was with them throughout the late morning hours of June 8, 1982.   Pearl Wright, defendant's wife, testified that Sunday, June 6, 1982, was her birthday and also her mother's birthday.   To celebrate the double event she and defendant attended a party on June 7 that went on past midnight.   They awoke the next day at 11:15 a.m., dressed, and at 11:45 a.m. went to a neighborhood club to decorate it for a second birthday party to be held that evening.   The witness testified that she and defendant remained at the club until late afternoon on June 8.   The witness's sister also took the stand, and corroborated Pearl's testimony.

Defendant was convicted of nine counts of armed robbery ² and two counts of attempted armed robbery.³  He was denied probation, and was sentenced to 12 years in state prison.   He was 19 years old at the time.   As to his codefendant Wellington, however, the jury was unable to reach a verdict and a mistrial was declared.⁴

Defendant's sole contention is that the court committed reversible error in refusing to give five special instructions he offered on his defense of mistaken identification.   To understand this issue it is necessary to review briefly the relevant instructions that the court did give.   The court charged the jury on the various factors affecting the credibility of witnesses in general (CALJIC No. 2.20),⁵ including “the extent of the witness' opportunity and ability to see and hear any matter about which he or she testifies, and the witness' ability to remember and relate those matters here in court,” on the presumption of innocence and the prosecution's general burden of proof beyond a reasonable doubt (CALJIC No. 2.90), on the specific burden of proof beyond a reasonable doubt of the fact of identity (CALJIC No. 2.91),⁶ and on the defense of alibi (CALJIC No. 4.50).⁷  The special instructions that defendant requested may conveniently be grouped into four categories.

 1. Defendant's Special Instructions Nos. 1 and 4.   These proposed instructions address the topic of the prosecution's burden of proof of the fact of identity.⁸  They are essentially duplicative of each other;  more important, they are also duplicative of former CALJIC No. 2.91, which the court gave to the jury (fn. 6, ante ).   Defendant stresses that his instruction No. 1 also tells the jury that the identity of the criminal is an element of the crime;  but this point was 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 tells the jury he need not prove he is innocent or another is guilty;  but this rule was stated in essence in CALJIC No. 2.90, defining the presumption of innocence.   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. McCowan (1978) 85 Cal.App.3d 675, 679–680, 149 Cal.Rptr. 611;  People v. Baeske (1976) 58 Cal.App.3d 775, 781–782, 130 Cal.Rptr. 35.)

 2. Defendant's Special Instruction No. 2.   On a different ground the court declined defendant's request for an instruction listing certain specific items of testimony and real evidence introduced at trial, and advising the jury that it may “consider” such testimony in determining whether the defendant is guilty beyond a reasonable doubt.⁹  The court refused to give this instruction because it is argumentative, i.e., it puts the court in a position of inviting the jurors to draw inferences favorable to the defendant from particular items of evidence on a disputed question of fact, and therefore properly belongs in the arguments of counsel to the jury.¹⁰

The ruling was correct.   In People v. McNamara (1892) 94 Cal. 509, 29 P. 953, a defendant charged with robbery was identified by the victim at trial.   The court refused to give a proposed defense instruction telling the jurors that in determining whether they have a reasonable doubt of the identity of the assailant they should “consider” certain specific items of testimony, which the instruction listed.¹¹  This court held the instruction was properly refused because it was argumentative, explaining that “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.   It appears to be a common practice to select certain material facts, or those which are deemed to be material, and endeavor 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.”  (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.) ¹²

This 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.)   To begin with, we deal here with an instruction, not a judicial comment;  although such a comment may address matters of fact, an instruction may not.¹³  “[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. Castellano (1978) 79 Cal.App.3d 844, 858, 145 Cal.Rptr. 264.)   Moreover, even if defendant had phrased his request as a proposed judicial comment rather than an instruction, it would still have been improper.   A judicial comment should be “temperate rather than argumentative and the trial court must avoid engaging in partisan advocacy.”  (People v. Cook (1983) 33 Cal.3d 400, 408, 189 Cal.Rptr. 159, 658 P.2d 86.)   Contrary to defendant's proposal herein, “such comment should, in the interests of justice, not be limited within an area selected by the defendant, nor given in language of his choosing.”  (Castellano, supra, at p. 858 of 79 Cal.App.3d, 145 Cal.Rptr. 264.)

Defendant's reliance on People v. Sears (1970) 2 Cal.3d 180, 84 Cal.Rptr. 711, 465 P.2d 847, is misplaced.   To begin with, he closely models his proposed instruction No. 2 on an instruction quoted in that opinion.  (Id. at pp. 189–190, 84 Cal.Rptr. 711, 465 P.2d 847.)   But that instruction was not intended to serve as a model;  indeed, the opinion itself (at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847) warns that in some respects the instruction is “defective in form” and that on retrial “appropriate” instructions should be given on request.  (See People v. Whittaker, supra, 41 Cal.App.3d 303, 308, 115 Cal.Rptr. 845.)

Next, defendant quotes out of context the statement in Sears that a defendant “has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered.”  (2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847.)   But this statement, like the broader observation in Sears that “A defendant is entitled to an instruction relating particular facts to any legal issue” (ibid.), was not meant to overthrow sub silentio the well-settled rule against argumentative instructions on a disputed question of fact.   As appears from the ensuing discussion in Sears (ibid.), these assertions refer instead to the defendant's right to an instruction that “pinpoint[s] the theory of the defense.”  (People v. Granados (1957) 49 Cal.2d 490, 496, 319 P.2d 346, italics added.)   The difference between an instruction that argues inferences of fact and one that pinpoints the theory of the defense was well explained in People v. Adrian (1982) 135 Cal.App.3d 335, 338–341, 185 Cal.Rptr. 506, and we need not repeat that analysis here.

We may illustrate the difference, however, by discussing People v. Wilson (1929) 100 Cal.App. 428, 280 P. 169, one of the authorities relied on in Sears.¹⁴  The defendant in Wilson, charged with robbery, put on an alibi defense.   The court instructed generally that the prosecution must prove every material fact beyond a reasonable doubt, and defined that standard by the statutory instruction set out in Penal Code section 1096 (CALJIC No. 2.90).   The court refused the defendant's special instructions explaining the alibi defense and relating it to the prosecution's burden of proof:  the instructions would have advised the jurors that if they believed the defendant was not present at the time the crime was committed, he should be acquitted.   On his appeal from the conviction, the defendant relied on earlier cases holding such instructions proper.   The People urged that because of the then-recent enactment of Penal Code section 1096a, no error was committed.  Section 1096a declares that if the court reads the statutory instruction on reasonable doubt set out in section 1096, “no further instruction ․ defining reasonable doubt need be given.”   Reversing the conviction, the Court of Appeal drew a distinction between instructions merely “defining” reasonable doubt and those requested by the defendant;  the latter, explained the court, identified the theory of the defense—alibi—and charged the jury on how to relate the evidence of that defense to the prosecution's general burden of proving guilt beyond a reasonable doubt.   (Id. at p. 432, 280 P. 169.)   The alibi instructions thus upheld were subsequently formalized as CALJIC No. 4.50, and were given the present case (fn. 7, ante ).

The same evolution has taken place with respect to the defense of mistaken identification, and it refutes the contention under discussion.   In People v. Gomez (1972) 24 Cal.App.3d 486, 100 Cal.Rptr. 896, the defense was both alibi and mistaken identification.   The trial court gave the alibi instruction of CALJIC No. 4.50, but refused an instruction to the effect that the prosecution has the burden of proving not only that the offense was committed but that it was the defendant who committed it;  that the jurors must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before they can convict;  and that if the circumstances of the identification are not convincing beyond a reasonable doubt, they must find the defendant not guilty.   The court declined to give this instruction on the ground it was covered by the general statutory instruction on proof beyond a reasonable doubt set out in Penal Code section 1096.   The Court of Appeal held the refusal was error, relying on the above-quoted Wilson-Sears language.  (Id. at p. 490,100 Cal.Rptr. 896.)   The Gomez instruction on the burden of proof of identification was promptly formalized as former CALJIC No. 2.91.

In the case at bar the court did give the Gomez instruction.  (Fn. 6, ante.)   This instruction pinpointed the theory of the defense—mistaken identification—and charged the jury on how to relate the evidence of that defense to the prosecution's general burden of proving guilt beyond a reasonable doubt.   In these circumstances the court did not err in refusing defendant's special instruction No. 2 on the ground it is argumentative.   Numerous decisions on similar instructions so hold.  (People v. Kaiser (1980) 113 Cal.App.3d 754, 764–766, 170 Cal.Rptr. 62;  People v. Guy (1980) 107 Cal.App.3d 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 45, 49, 136 Cal.Rptr. 387;  People v. Whittaker, supra, 41 Cal.App.3d 303, 307–309, 115 Cal.Rptr. 845;  People v. Hernandez (1971) 18 Cal.App.3d 651, 660, 96 Cal.Rptr. 71;  People v. Grant (1970) 11 Cal.App.3d 687, 690, 89 Cal.Rptr. 784, disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451, 99 Cal.Rptr. 313, 492 P.2d 1.)   Indeed, in oral argument defendant conceded his special instruction No. 2 “could have been corrected to be a proper instruction,” i.e., to avoid being argumentative and to focus instead on general psychological factors as did his instruction No. 3.   We turn therefore to the latter.

3. Defendant's Special Instruction No. 3.   A more difficult issue is presented by the court's refusal to give an instruction focusing the jury's attention on certain psychological factors that could affect the accuracy of the eyewitness identifications in this case.¹⁵  The proposal is based on a well-known model instruction originally promulgated in United States v. Telfaire (D.C.Cir.1972) 469 F.2d 552, 558–559, for use in the federal district court for the District of Columbia.   The Telfaire instruction has been adopted in most federal circuits, and in the states of New York, Massachusetts, Kansas, and West Virginia;  in other states it has met with resistance on various grounds.¹⁶

The Telfaire instruction has had a checkered history in the appellate decisions of this state.   It first appeared in People v. Guzman (1975) 47 Cal.App.3d 380, 386–387, footnote 1, 121 Cal.Rptr. 69.¹⁷  Guzman held that although it was probably “too long and argumentative” as written, the instruction “at least presents the basic problem and could have been modified to eliminate the faults contained․  The time is past when a trial judge may refuse an otherwise proper instruction because of the use of an improper word.”  (Id. at p. 386, 121 Cal.Rptr. 69.)

At first, despite this endorsement, the Guzman instruction was not well received by other Courts of Appeal.   In the five years after Guzman various decisions held that a refusal to give the instruction either is not error or is harmless because the court gave general instructions on the topic, usually CALJIC Nos. 2.20 and 2.91.¹⁸  We need not pause to discuss these cases individually, because subsequent decisions of this court and the Courts of Appeal have made it clear that such general information is no longer adequate when eyewitness identification testimony is crucial to the issue of guilt.

The first of our decisions in point was People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826.   There, too, the court refused to give a Guzman instruction.  (Id. at p. 158, fn. 10, 167 Cal.Rptr. 844, 616 P.2d 826.)   We recognized that Guzman found the instruction to be too long and argumentative, and that some of the factors highlighted by the instruction were inapplicable to the evidence before us.  (Id. at p. 159, 167 Cal.Rptr. 844, 616 P.2d 826.)   Nevertheless we held the court erred because it failed to cure those defects:  we explained that “Although the trial court did not err in refusing to give the instruction as written, it should not have refused to tailor the instruction to the facts of this case.”  (Ibid.)  While we found the error nonprejudicial because the court gave CALJIC Nos. 2.20 and 2.91, we declared that “In the future, the trial courts should consider and give appropriate instructions involving reasonable doubt and eyewitness identification.”  (Id. at pp. 159–160, 167 Cal.Rptr. 844, 616 P.2d 826.)

A few subsequent decisions paid little or no heed to our warning in Hall, and continued to hold that general instructions on eyewitness identification ipso facto render a Guzman instruction “superfluous.” ¹⁹  However, beginning with People v. West (1983) 139 Cal.App.3d 606, 189 Cal.Rptr. 36, the Courts of Appeal have generally held it error, in appropriate cases, to refuse a proper Guzman instruction even if such general instructions are given;  they have also affirmed the judgment only when the error was plainly nonprejudicial on the whole record, i.e., under the normal rule of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.

Thus in West the court refused to give an instruction that was a simplified version of Guzman, focusing on only those factors shown by the evidence.   (139 Cal.App.3d at p. 609, 189 Cal.Rptr. 36.)   The Court of Appeal reasoned that “Even though the trial court gave CALJIC Nos. 2.20 and 2.91, we do not deem the failure to give appellant's ‘Proposed Special Instruction’ to be harmless error.   Whether an error is harmless or not depends on the particular facts of each case and on the specific instruction refused.”  (Id. at p. 610, 189 Cal.Rptr. 36.)   The court then observed that the proposed instruction identified several relevant factors that are not mentioned in the standard instructions;  and turning to the facts, it stressed that the sole issue at trial was identity, the evidence on that issue was conflicting, and the jury appeared to have difficulty in reaching a verdict.   The court therefore held the error prejudicial and reversed the judgment.

In People v. Yeats (1984) 150 Cal.App.3d 983, 198 Cal.Rptr. 268, the court refused to give an instruction (id. at pp. 987–988, fn. 1, 198 Cal.Rptr. 268) closely modelled on the instruction upheld in West.   The Court of Appeal reviewed such decisions as Guzman, Hall, and West, and concluded that “an unbroken string of authority requires the giving of factually appropriate pinpoint jury instructions correlating the issues of identity and reasonable doubt.”  (Id. at p. 990, 198 Cal.Rptr. 268.)   The court therefore held it was error to refuse the proposed instruction.   It found the error nonprejudicial on the facts, however, because the eyewitness was an experienced police officer who was trained to make accurate observations, had an opportunity to speak with the defendant at the scene, and identified him in a pretrial photographic lineup;  in addition, his testimony was corroborated by strong circumstantial evidence.

In a trio of cases decided on the same day, the Court of Appeal reiterated and applied the rule that when the accuracy of eyewitness identification is a crucial issue the court errs if it fails to give a requested Guzman instruction after modifying it to correct any defects in form.  (People v. Aho (1984) 152 Cal.App.3d 658, 663, 199 Cal.Rptr. 671;  People v. Coates (1984) 152 Cal.App.3d 665, 670–671, 199 Cal.Rptr. 675;  People v. Brown (1984) 152 Cal.App.3d 674, 678, 199 Cal.Rptr. 680.)   Each decision also invoked the rule that the inquiry into prejudice does not end on finding that the court gave general instructions on eyewitness identification (e.g., CALJIC Nos. 2.20 and 2.91), but must encompass a review of the error in light of all the evidence in the case.  (Aho, 152 Cal.App.3d at p. 663, 199 Cal.Rptr. 671 [error held harmless];  Coates, 152 Cal.App.3d at pp. 671–672, 199 Cal.Rptr. 675 [error held prejudicial];  Brown, 152 Cal.App.3d at pp. 678–679, 199 Cal.Rptr. 680 [error held harmless].)

The most recent decision in this series is People v. Palmer (1984) 154 Cal.App.3d 79, 203 Cal.Rptr. 474.   There the court gave general instructions on eyewitness identification, but refused to give the Guzman instruction on the ground that it was “redundant.”  (Id. at p. 85, 203 Cal.Rptr. 474.)   The Court of Appeal observed that the Guzman instruction “is unfortunately somewhat general in language.   However, it is far better attuned to alerting the jurors to factors particularly relevant to evaluating credibility of eyewitness identifications in this case than the bland generalizations of the instructions given.”  (Id. at p. 89, 203 Cal.Rptr. 474.)   In any event, the court held that the refusal to instruct was error under settled law:  citing our decisions in Sears and Hall, the court said, “we are surprised by the regularity with which these binding authorities are seemingly disregarded.”  (Id. at p. 82, 203 Cal.Rptr. 474.)

The court then turned to the question of prejudice.   The evidence showed that two Black men, one of whom was armed, robbed three employees and three customers of a service station.   The sole issue was identity.   The Court of Appeal emphasized the following aspects of the testimony:  the contact of each eyewitness with the robbers was brief and at night;  at the photographic lineup following the robbery, two of the eyewitnesses misidentified the defendant and only one identified him unequivocally;  other eyewitnesses did not identify him for the first time until the preliminary hearing two months later, but that setting was inherently suggestive because the defendant was the only Black man in the courtroom;  several of the eyewitnesses were of a different race from the defendant;  none saw anything unusual about the armed robber's facial features, although the defendant wore a permanent silver brace on his front teeth;  none professed any expertise in making eyewitness identifications;  and there was no corroborating evidence of any kind.

The Court of Appeal gave separate attention to the fact that all six eyewitnesses identified the defendant at the trial, concluding that it did not ipso facto render the error harmless.   The court explained that “the testimony of each eyewitness must be evaluated and judged separately.   In the interest of justice [the defendant] is entitled to have the jurors judicially instructed, at his request, that the law requires they evaluate the testimony of each eyewitness by factors specifically relevant to the circumstances under which identification was made.   In the absence of such an instruction, we find a substantial likelihood a juror would tend not to indulge in individual credibility analyses, but simply count the number of witnesses.”  (Id. at p. 89, 203 Cal.Rptr. 474.)   On this record the court held the error prejudicial and reversed the judgment.

Finally, as noted at the outset, this court recently addressed the subject of psychological factors that can affect the accuracy of eyewitness identifications in People v. McDonald, supra, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.   Although the particular issue was the admissibility of expert testimony on such factors, much of our analysis is relevant here.   We began by recognizing, together with distinguished federal courts, that eyewitness identifications are often unreliable, particularly when a witness identifies a stranger on the basis of a single brief observation made in fear or under stress.  (Id. at pp. 363–364, 208 Cal.Rptr. 236, 690 P.2d 709.)

Throughout our opinion we acknowledged, as numerous empirical studies have found, that certain psychological factors inherent in the observer or the event can adversely affect the accuracy of eyewitness identifications, and some of those factors “may be known only to some jurors, or may be imperfectly understood by many, or may be contrary to the intuitive beliefs of most.”   (Id. at p. 368, 208 Cal.Rptr. 236, 690 P.2d 709.)   Such factors include “the effects of perception of an eyewitness' personal or cultural expectations or beliefs [citation], the effects on memory of the witness' exposure to subsequent information or suggestions [citation], and the effects on recall of bias or cues in identification procedures or methods of questioning” (ibid.).   Others are “the pitfalls of cross-racial identification” and “the lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification.”  (Id. at pp. 368, 369, 208 Cal.Rptr. 236, 690 P.2d 709.)

We held that the exclusion of qualified expert testimony on the foregoing factors constituted, on the record in McDonald, a prejudicial abuse of discretion.   First, the issue affected by the ruling—identity—was crucial because no evidence connected the defendant with the crime other than the testimony of the eyewitnesses.  (Id. at p. 375, 208 Cal.Rptr. 236, 690 P.2d 709.)   Second, that testimony contained elements that could have raised reasonable doubts as to the accuracy of the identification, including the suddenness and unexpectedness of the event, discontinuity and other difficulty of observation, fear and other stress at the time of perception, failure or uncertainty of several witnesses in identifying the defendant before trial, and the cross-racial nature of the identifications.  (Id. at pp. 375–376, 208 Cal.Rptr. 236, 690 P.2d 709.)   We reasoned that the exclusion of expert testimony on such factors undercut the defense of mistaken identity and “deprived the jurors of information that could have assisted them in resolving that crucial issue.”  (Id. at p. 376, 208 Cal.Rptr. 236, 690 P.2d 709.)   And we concluded that “An error that impairs the jury's determination of an issue that is both critical and closely balanced will rarely be harmless.”  (Id. at p. 376, 208 Cal.Rptr. 236, 690 P.2d 709;  see generally Comment, Admission of Expert Testimony on Eyewitness Identification (1985) 73 Cal.L.Rev. 1402.)

 In light of these precedents it is apparent that the court erred in refusing to give defendant's special instruction No. 3.  (Fn. 15, ante.)   It does not duplicate the general instruction on eyewitness identification (CALJIC No. 2.91, fn. 6, ante ), which relates the standard of proof beyond a reasonable doubt to the issue of the identity of the defendant but does not tell the jury what factors it should consider in applying that standard.  (Comment, supra, 11 U. San Fernando Val.L.Rev. 95, 116.)   Although based on the Guzman instruction, it is a much condensed version of that charge;  and rather than drawing factual inferences favorable to defendant from specific items of testimony, it focuses attention on “considerations any jury must make in evaluating any eyewitness identification.”  (People v. Guy, supra, 107 Cal.App.3d 593, 603, 165 Cal.Rptr. 463.)   It is therefore not “too long and argumentative,” as the original Telfaire-Guzman instruction is often said to be.   And as drafted in the case at bar, it does not err by referring to factors unsupported by the evidence.  (Cf. People v. Hall, supra, 28 Cal.3d 143, 159, 167 Cal.Rptr. 844, 616 P.2d 826.)

 Indeed, if defendant's special instruction No. 3 sins at all, it sins by omission:  it does not call the jury's attention, for example, to the cross-racial nature of the eyewitness identifications in this case.   But even if this or any other shortcoming were deemed to excuse the court from giving the instruction as proposed, it would not relieve the court of the duty of tailoring the wording to fit the case by inserting any factors it believed missing.   (People v. Coates, supra, 152 Cal.App.3d 665, 670–671, 199 Cal.Rptr. 675.)   Defense counsel begged the court to make any changes it found necessary, but to no avail.²⁰  This, too was error.  (People v. Hall, supra, 28 Cal.3d at p. 159, 167 Cal.Rptr. 844, 616 P.2d 826.)

To avoid the kind of misunderstanding that arose from our quotation of the requested instruction in People v. Sears, supra, 2 Cal.3d 180, 189–190, 84 Cal.Rptr. 711, 465 P.2d 847, we emphasize that defendant's special instruction No. 3 is not, in its proposed form, a model instruction.   We do not underestimate the difficulties of drafting such a charge.   If, in an effort to be complete, the court lists every factor shown by the evidence that conceivably might bear on the accuracy of eyewitness identifications in the case, it risks telling the jurors the obvious and/or overwhelming them with detail.²¹  It also risks violating the above-noted rule (fn. 12, ante ) against singling out specific items of evidence:  “Unavoidably, the more precisely a trial court instructs a jury on the factors it should consider in deciding an issue, the more it will suggest the weight that should be given the testimony of particular witnesses.”  (People v. Smith, supra, 67 Cal.App.3d 45, 49, 136 Cal.Rptr. 387.)

On the other hand, if the court merely lists factors—whether few or many—that the jurors “should consider,” ²² it fails to inform them what effect any such factor may have on the accuracy of the eyewitness identifications in the case;  and as we stressed in McDonald (37 Cal.3d at pp. 368–369, 208 Cal.Rptr. 236, 690 P.2d 709), the effect of certain factors may be known only to some jurors or be contrary to the intuitive beliefs of most.   If the court goes too far in providing such information, however, it may be led to instruct on effects that arguably are still controversial;  it would then stray into the domain of expert testimony and impair the prosecution's right to cross-examine.

Yet despite these pitfalls the effort must be made, for all the reasons we recognized in McDonald.   It is true that some commentators doubt the effectiveness of an instruction on eyewitness identification and believe that a better solution is expert testimony on the subject; ²³  but while we approved of that solution in McDonald, we are aware it is not the answer in many cases.   Few defendants can afford to retain such experts.   Moreover, the admission of such testimony remains generally a matter of trial court discretion (McDonald, 37 Cal.3d at p. 377, 208 Cal.Rptr. 236, 690 P.2d 709), but an instruction on the subject is mandatory on request in any case in which it is warranted by the evidence and the accuracy of the eyewitness identification is crucial to the issue of guilt.   And even when expert testimony on eyewitness identification is introduced, an appropriate instruction will still be needed to assist the jury in appraising that testimony.   In these circumstances, “Well-drafted, effectively presented cautionary instructions can go far toward reducing the danger of wrongful conviction and, by assuring more intelligent decision-making, enhancing the efficacy of the jury process itself.”  (Comment, supra, 12 Am.J.Crim.L. 189, 218.)²⁴

 4. Defendant's Special Instruction No. 5.   Lastly, the court refused to give an instruction advising the jury that eyewitness identification testimony should be received with caution.²⁵  Its source is an observation in United States v. Wade (1967) 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149, which the instruction paraphrases.   A similar instruction was held improper in People v. McCowan, supra, 85 Cal.App.3d 675, 679, 149 Cal.Rptr. 611, on the ground that “It does not state a principle of law,” but the objection is not well taken.   A cautionary instruction does not purport to state a rule of substantive law, yet neither is it a prohibited charge on a matter of fact (see fn. 13, ante ).   Rather, it is an exercise of the trial court's broad supervisory power to ensure that the jury understands and properly discharges its duties.   A major responsibility of the court is to guide the jury in its task of evaluating the evidence;  CALJIC contains literally dozens of instructions designed for that purpose.  (E.g., CALJIC Nos. 2.00–2.91.)   Among them are admonitory instructions of the type here requested.   Such a charge is required when the law perceives a risk that a certain class of testimony, although admissible, is unreliable or otherwise likely to mislead the jury;  the strength of the warning then depends on the gravity of that risk.²⁶  Thus the court must instruct that the testimony of an accomplice should be viewed “with distrust” (CALJIC No. 3.18 (1979 rev.)), as should that of any witness found to have testified falsely in material part (CALJIC No. 2.21);  but evidence of an oral admission of the defendant should be viewed simply “with caution” (CALJIC No. 2.71 (1980 Rev.)), while the jury may find any fact on the testimony of a single witness provided only that it “carefully review[s] all the testimony upon which the proof of such fact depends” (CALJIC No. 2.27 (1977 rev.)).

The premise for such an instruction on eyewitness identification testimony is not new:  “Both this court and the United States Supreme Court have recognized that eyewitness identifications are often unreliable.”  (People v. Cardenas (1982) 31 Cal.3d 897, 908, 184 Cal.Rptr. 165, 647 P.2d 569, citing United States v. Wade, supra, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, and People v. Bustamante (1981) 30 Cal.3d 88, 98, 177 Cal.Rptr. 576, 634 P.2d 927;  see also People v. McDonald, supra, 37 Cal.3d at pp. 363–364, 208 Cal.Rptr. 236, 690 P.2d 709, and cases cited.)   It follows that a defendant against whom eyewitness identification testimony is introduced is entitled on request to an admonitory instruction on the subject.   Because such evidence is not generally as unreliable as the testimony of an accomplice or a perjurious witness, however, the warning need only be to view it “with caution.”   The court therefore erred in refusing defendant's special instruction No. 5.²⁷

Prejudice

 The precedents discussed in Part 3, ante, are also persuasive on the question of prejudice.   Here, as in West, Coates, Palmer, and McDonald, identity was the sole issue at trial and the only evidence connecting defendant with the crime was the eyewitness identification testimony.   Also as in those cases, the record discloses a number of factors that could have raised reasonable doubts as to the accuracy of the identifications:  the events were sudden and unexpected;  defendant was a stranger to the witnesses;  their opportunity to observe the robbers was not only brief but seriously impaired by the masks that all the robbers wore and the fact that all the witnesses were made to lie facedown on the floor;  most of the witnesses were unable to identify defendant either after the crime or at trial;  the three witnesses who did identify him were each of a different race from defendant;  they also admitted they were afraid during the encounter, they had varying degrees of difficulty in identifying defendant from photographs or in lineups, and in fact they made several misidentifications;  other witnesses testified that defendant was with them at the time of the robbery;  and the jury was unable to reach a verdict as to his codefendant Wellington, even though the identification of the latter by the witness Tong was far more positive—and based on a far greater opportunity to observe—than any identification of defendant.

In these circumstances, as in McDonald, we conclude that the error affected the jury's determination of an issue that was “both critical and closely balanced.”  (37 Cal.3d at p. 376, 208 Cal.Rptr. 236, 690 P.2d 709.)   After an examination of the whole record we find it reasonably probable that a result more favorable to defendant would have been reached in the absence of this error.  (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment is reversed.

Appendix

EYEWITNESS TESTIMONY TO BE VIEWED WITH CAUTION

Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the person who committed the crime[s] charged.   The law recognizes that eyewitness identification is not always reliable, and that cases of mistaken identity have been known to occur.   You should therefore view eyewitness identification testimony with caution, and evaluate it carefully in light of the factors I shall discuss.

FACTORS TO CONSIDER IN DETERMINING IDENTITY BY EYEWITNESS TESTIMONY

Many factors can affect the accuracy of eyewitness identification.   In determining the weight to be given the eyewitness identification testimony in this case, you should first consider the factors I have previously mentioned that may affect the testimony of all witnesses generally.   But you should also consider other factors that may particularly affect eyewitness identification testimony.   Some are known to you from your personal experiences, while others have been the subject of scientific study and proof.   Among the more important factors to consider are the following: ^*

Did the witness have an adequate opportunity to observe the person who committed the crime?   In answering this question, you should take into account such matters as the length of time the witness saw the offender, their positions and the distance between them, the lighting conditions, and the presence or absence of any circumstances that might focus or distract the witness's attention.

[Was the witness's capacity to observe the offender impaired by injury, alcohol or drugs?]

Was the witness already familiar with the offender, or were they strangers?   In general, people are better at identifying persons they already know than persons with whom they have had no previous contact.

[Were the witness and the offender of different races?   Studies show that when the witness and the person he is identifying are of different races, and particularly when the witness is white and the offender is black, the identification tends to be less reliable than if both persons are of the same race.]

Did the witness give a description of the offender immediately after the alleged crime?   If so, how well does the defendant fit that description?

Was the witness's memory affected by intervening time and events?   Memory tends to fade over time.   And studies show that a witness may subconsciously incorporate into his memory information from other sources, such as descriptions by other witnesses.

Did the witness identify the defendant before trial, either from photographs or in a lineup?   If so, were the photographs or the lineup suggestive in any way?   An identification made from a lineup tends to be more reliable than an identification from photographs.   And an identification made when the witness views the defendant in a group of people of similar appearance tends to be more reliable than when he views the defendant alone.

[On any occasion before trial did the witness fail to identify the defendant, or did he identify someone else as the offender?]

I remind you that no single factor determines the reliability of an eyewitness identification.   The presence of one or more factors in a particular case may offset the effect of others.   In weighing the identification testimony of an eyewitness, you should therefore evaluate all the relevant evidence, both positive and negative, that may bear on the accuracy of that testimony.

I concur in the result.   The actual writing of instructions has been a task we eschew.   I would resist the temptation in this case as well.

I agree with the majority that of the five instructions requested by defendant in the trial court, the court appropriately refused to give defendant's proposed instructions Nos. 1, 2 and 4.   However, I respectfully dissent to the majority's holding that the error in failing to give instruction No. 3 was prejudicial.   Further, I would disapprove of the use of proposed instruction No. 5, and I particularly disagree with the adoption of the instructions suggested in the appendix to the majority opinion.

In general I agree that in appropriate cases ¹ jury instructions may be given on the subject of eyewitness identification which, in an unbiased manner, list factors supported by the evidence.   In my view, the instruction suggested in CALJIC No. 2.92, Fourth edition 1984 pocket part,² will usually suffice.   In contrast, the majority's suggested instruction on factors affecting eyewitness identification is highly inappropriate because it not only invades the domain of expert witnesses and the jury, but it also comes perilously close to prohibited judicial comment on the evidence.

I agree with the majority that, in the instant case, defendant's proposed instruction No. 3 should have been given.   This instruction, which lists factors relevant to eyewitness identification, is similar in content and style to CALJIC No. 2.92.   In my view, however, defendant did not suffer any prejudice from the omission;  it is not reasonably probable that a result more favorable to defendant would have been reached.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Finally I dissent to the majority's approval of the use of a cautionary instruction on the unreliability of eyewitness identification.   An instruction such as defendant's proposed instruction No. 5 or the majority's suggested cautionary instruction is inappropriate under any circumstances, but particularly so if given in addition to an instruction on eyewitness-factor identification.   Thus, in my view, the trial court correctly refused to give defendant's proposed instruction No. 5.

A. Defendant's Proposed Eyewitness-factor Jury Instruction

Resolution of this case initially requires considering two questions:  (1) What eyewitness-factor instruction should be given to the jury, and (2) when is an error in failing to give such an instruction prejudicial?

1. What Instruction on Factors Affecting Eyewitness Identification Should Be Given to the Jury?

As the majority notes, it is settled that eyewitness-factor instructions should be given in addition to general instructions on eyewitness identification in appropriate cases.  (People v. Hall (1980) 28 Cal.3d 143, 159–160, 167 Cal.Rptr. 844, 616 P.2d 826.)   Heretofore it has been accepted that a proper instruction simply lists factors for jury consideration, and is not unduly long, argumentative or inapplicable to the evidence at trial.   To that end, we repeated in Hall that an appropriate eyewitness-factor instruction “ ‘directs attention to evidence from ․ which a reasonable doubt of guilt could be engendered.’  (People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847].)”  (Id. at p. 159, 167 Cal.Rptr. 844, 616 P.2d 826, italics added;  see also People v. Palmer (1984) 154 Cal.App.3d 79, 89, 203 Cal.Rptr. 474.)

Following Hall, various Court of Appeal decisions have approved instructions listing factors relevant to eyewitness identification.  (See, e.g., People v. Brown (1984) 152 Cal.App.3d 674, 678, fn. 3, 199 Cal.Rptr. 680;  People v. Guzman (1975) 47 Cal.App.3d 380, 386–387, fn. 1, 121 Cal.Rptr. 69.)   Recognizing that the purpose behind giving such instructions is to direct the jurors' attention to relevant evidence, I would agree that a list of relevant factors is the appropriate form for instructions relating to eyewitness identification.   Under that standard, defendant's proposed instruction No. 3, which simply lists factors and is similar to CALJIC No. 2.92, was appropriate and should have been given by the trial court.   Thus, because the requested instruction was essentially proper in form and scope, the trial court erred in failing to so charge the jury because defendant's identity clearly was a crucial issue.³

2. When Is an Error in Failing to Give an Eyewitness-factor Instruction Prejudicial?

I agree with the majority that the standard of review described in People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243, is appropriate here.   (Ante, p. 105 of 233 Cal.Rptr., at p. 296 of 729 P.2d.)   The issue for determination is whether, after an examination of the whole record, it is reasonably probable that a result more favorable would have been reached in the absence of the error.   Nonetheless, I disagree with my colleagues' conclusion that the failure to give the requested instruction on eyewitness identification was prejudicial.

The robbery lasted 20 minutes.   Three witnesses identified defendant with varying degrees of certainty, and the reliability of this evidence was the subject of substantial questioning and argument at trial.   Defendant's defense was an alibi provided by his wife and sister-in-law.   Jury deliberation lasted only a day and no unusual factors existed which might indicate jury confusion.   Compare, for example, People v. Coates (1984) 152 Cal.App.3d 665, 672, 199 Cal.Rptr. 675, where error for failure to specifically instruct was found to be prejudicial.   There, the court found significant that the jury sought a rereading of evidence and the reasonable-doubt instruction, stating:  “[It] is as though the jurors themselves were requesting a more detailed instruction on the subject of identification, the only issue in the case.”  (Ibid.)  No such inference can be drawn here.⁴

Factors relevant to demonstrating weaknesses in the witnesses identifications were amply laid out for the jury during questioning.   For example, Peter Marino identified a photo of defendant on the afternoon of the robbery.   He admitted that the stocking masks the robbers were wearing made each face look “like it was drawn.”   Although unable to identify defendant at a photo spread at the preliminary hearing, he did identify defendant at trial;  however, he stated that he based this identification on “the picture that I saw.”   The witness candidly admitted “you don't get a full look at everybody and you're scared,” and acknowledged the distractions of other employees who were yelling and screaming.   Thus, all of the matters bringing defendant's identification into question were clearly laid out for the jury.

Stephanie Sung, who similarly came face to face with defendant, briefly stated she could see his features despite the mask and her extreme nervousness.   She identified defendant's photo on the day of the robbery and at a lineup a week later, and explained at trial that she did not sign her lineup card verifying her identification because she was then only 75 percent certain defendant was the robber.   At trial, she was 100 percent certain.

Erica Albertsen, another witness, stated she saw defendant's face very clearly as he ran around the room.   She admitted to being “scared and startled” but claimed the mask “didn't pull his features tight.”   Two days after the robbery Albertsen failed to select defendant's photo in a photo spread, but she identified defendant at a lineup a week later.   Other witnesses who were unable to identify defendant attributed their difficulty to factors such as poor eyesight, fear, positioning during the robbery (most victims were made to lie on the floor) and concealment by the masks.

In addition to these facts, the trial court in the instant case charged the jury with various instructions including factors affecting the credibility of witnesses in general (CALJIC No. 2.20 (4th ed. 1980 pocket pt.));   the presumption of innocence and the prosecution's general burden of proof beyond a reasonable doubt (CALJIC No. 2.90);  the specific reasonable doubt burden of proof on the fact of identity (CALJIC No. 2.91 (4th ed. 1982 pocket pt.));   and the defense of alibi (CALJIC No. 4.50).

Each witness who did identify defendant was candid about the effect of the various factors listed in defendant's proposed jury instruction No. 3 and was extensively interrogated thereon.   The net result was that giving the instruction in all probability would not have produced a result more favorable to the defendant.   The jury was well aware, through extensive examination of the witnesses and the arguments, of the weaknesses in the identifications.   Counsels' closing arguments alone spanned over 100 pages of transcript.   It seems apparent that the jury found the eyewitnesses' testimony credible, and sufficiently accurate despite all the difficulties detailed, and also found defendant's alibi incredible.   Based on the facts of the robbery, the general jury instructions given and the extensive exploration of the relevant factors during testimony, I find no prejudice to defendant in the trial court's failure to give defendant's proposed instruction No. 3.   It is not reasonably probable that the jury would have reached a verdict more favorable to defendant if instruction No. 3 had been given,⁵ and I would therefore affirm the conviction.

B. The Majority's Suggested Instruction on Factors to Consider in Determining Identification by Eyewitness Testimony

The majority suggests in an appendix an instruction on eyewitness-identification factors which I find inappropriate for several reasons.   It goes beyond any previously approved instructions by informing the jury of specific effects that individual factors may have on the accuracy of such identification.   The majority's unwarranted rejection of CALJIC No. 2.92 and adoption of an instruction directing jurors to interpret the factors in a specific manner improperly invades the domain of expert witnesses, the jury and the judge.

1. The Role of Expert Witnesses and the Jury

In People v. McDonald (1984) 37 Cal.3d 351, 375–377, 208 Cal.Rptr. 236, 690 P.2d 709, we held it error, in certain cases, to exclude expert testimony on the effect of psychological factors shown by the evidence on the accuracy of eyewitness identification.   We acknowledged that a 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 eyewitnesses—that supports his defense of mistaken identification and could give rise to a reasonable doubt of his guilt.  [Citations.]”  (Id. at p. 377, fn. 24, italics added, 208 Cal.Rptr. 236, 690 P.2d 709.)   The proper wording of such an instruction was specifically left unsettled.  (Ibid.)  The majority's suggested instruction here goes well beyond our original proposal in McDonald for instructions that focus the jury's attention on evidence already in the record.   Instead, it is a charge to the jury which essentially adopts expert opinion as uncontrovertible fact without requiring testimony at trial from any expert.

In McDonald, supra, we carefully reviewed the role of experts in bringing scientific information to the attention of the judicial system.   We determined that expert testimony on the effects of psychological factors bearing on eyewitness identification is “ ‘sufficiently beyond common experience’ that in appropriate cases expert opinion thereon could at least ‘assist the trier of fact’ (Evid.Code, § 801, subd. (a)).”  (People v. McDonald, supra, 37 Cal.3d at p. 369, fn. omitted, 208 Cal.Rptr. 236, 690 P.2d 709.)   Thus, we explained that expert testimony on the effects of psychological factors relating to eyewitness identification is a proper vehicle by which to present such information for the jury's evaluation.   The majority's suggested instruction here, however, goes far beyond simply finding such evidence permissible.   It instead incorporates in toto the view of experts on these effects, and binds the jury to accept that view unconditionally.⁶  Such a result runs afoul of the well settled rules regarding the jury's function with respect to expert testimony.

The usual approach to using expert testimony contains safeguards against usurping the jury's function as trier of fact.   In McDonald, we expressly observed as to the testimony on psychological factors deemed admissible that “As is true of all expert testimony, the jury remains free to reject it entirely after considering the expert's opinion, reasons, qualifications, and credibility.   Indeed the Penal Code commands (§ 1127b) that an instruction so informing the jury be given in any criminal trial in which expert opinion evidence is received. ”  (People v. McDonald, supra, 37 Cal.3d at p. 371, italics added, fn. omitted, 208 Cal.Rptr. 236, 690 P.2d 709) CALJIC No. 2.80 is used to fulfill this requirement and states in relevant part:  “You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled.   You may disregard any such opinion if you find it to be unreasonable.”  McDonald thus permits expert testimony on the issue of the effects of eyewitness identification without in any manner usurping the jury's prerogatives.   The majority's suggested instruction, in contrast, totally deprives the jury of its independence in considering such expert evidence.   Not only does it speak generally of areas upon which the jury should focus, it specifically adopts the views of certain experts and directs the jury to use that approach in considering particular evidence.

Charging the jury with the majority's suggested instruction will likely eliminate completely any need for expert testimony in this area.   For example, one portion of the majority's suggested instruction provides:  “Were the witness and the offender of different races?   Studies show that when the witness and the person he is identifying are of different races, and particularly when the witness is white and the offender is black, the identification tends to be less reliable than if both persons are of the same race.”  (Italics added.)   If expert opinion on the subject of cross-racial identification were offered to the jury, I would imagine that it would include a discussion of factors which would make such identifications more or less reliable.  (Cf. United States v. Nobles (1975) 422 U.S. 225, 232, 95 S.Ct. 2160, 2167, 45 L.Ed.2d 141.)   Thus, if a witness has extensive experience in dealing with and identifying members of another race, his or her cross-racial identification may well be highly reliable.   Yet, under the majority's formulation, rather than having the benefit of expert opinion which it would be free to weigh and apply in the manner it finds appropriate, a jury will instead be told that cross-racial identifications are potentially always less unreliable.   The same concerns apply to the suggested admonitions to the jury that “an identification made when the witness views the defendant in a group of people of similar appearance tends to be more reliable than when he views the defendant alone.” ⁷

If expert witnesses are used to assist the jury as permitted by McDonald, several factors are true which will not apply if only the majority's proposed instruction is given.   Experts who hold opinions on both sides of the scientific controversy may be called to testify as in the case regarding the effect of stress.   Questioning may be geared to the particular circumstances of the identification.   For example, the effect of medications, age or background on a witness's perceptions might well be an important area of inquiry.   Any expert on the stand will be subject to a wide range of questions on direct and cross-examination.   Questions such as those will assist the jury in judging credibility and qualifications of each expert and eyewitness.

In contrast, the majority's deceptively simple instruction will completely eliminate the jury's task of judging the weight to be given to expert opinion and will deprive the jury of any meaningful information about how it can use the generalizations now incorporated in an admonitory instruction.   In McDonald, we held that expert opinion was appropriate because the effect of various factors on eyewitness identification was sufficiently beyond the normal knowledge and experience of some jurors as to make such testimony of value to the jurors in evaluating the relevant evidence.   The majority's use of a brief instruction assertedly to replace our previous holding that expert opinion may well be admissible undercuts McDonald's fundamental premise by assuming that the unadorned instruction will resolve the problems that case sought to address.   It will only add to juror confusion by giving the jury only partial information and no direction as to how that information should be viewed.

Thus, although expert testimony or a jury instruction may be valuable, it should not be one-sided.   A mandatory jury instruction charging the jury with one view is a hard and fast rule that is highly misleading.

The mandatory jury charge suggested by the majority adopts expert opinion and emphasizes only factors which may detract from identifications and requires the jury to give these characterizations conclusive weight.   The instruction is directory;  it tells the jury that it must consider certain identifications as probably less reliable.⁸  In fact, it would behoove defense counsel to refrain from presenting expert testimony on such factors because to do so will require the giving of CALJIC No. 2.80, leaving the jury free to afford the weight it deems proper to the expert opinion.   Because of its wholesale adoption of expert opinion without room for jury weighing, the instruction usurps the jury's usual functions of considering the qualifications and credibility of an expert witness and ascribing to an expert's testimony such value as it deems appropriate.

The majority's endorsement of such a mandatory jury charge appears, as far as I can ascertain, unprecedented.   There is no adequate reason given for the approach suggested by the majority, and it is wholly unnecessary to go so far beyond heretofore accepted bounds.   Adequate protection against misidentification can be provided to a defendant by instructing the jury under CALJIC No. 2.92 and by use of expert testimony if necessary.   Further, many other areas of expertise (or “common sense”) arguably may also be adaptable into similar instructions mandating the jury's utilization of such evidence in a particular manner.   My colleagues suggest at one point that if an instruction goes too far in providing information it would “stray into the domain of expert testimony and impair the prosecution's right to crossexamine.”  (Ante, p. 103 of 233 Cal.Rptr., at p. 294 of 729 P.2d.)   In my view, the majority's suggested instruction provided does exactly that.⁹

2. Judicial Comment

Article VI, section 10, of the state Constitution provides in relevant part:  “The court may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necesary for the proper determination of the cause.”   It is well settled that such comments must be scrupulously fair and may not invade the jury's province as exclusive trier of fact.  (People v. Friend (1958) 50 Cal.2d 570, 577–578, 327 P.2d 97.)   Section 10 does not permit the trial judge to state inaccurately the testimony of witnesses or to withdraw material evidence from the jury's consideration.   Comment must be temperate rather than argumentative and avoid entanglement in partisan advocacy.  (People v. De Moss (1935) 4 Cal.2d 469, 476–477, 50 P.2d 1031;  People v. Talkington (1935) 8 Cal.App.2d 75, 99, 47 P.2d 368.)

In People v. Cook (1983) 33 Cal.3d 400, 408, 189 Cal.Rptr. 159, 658 P.2d 86, we focused specifically on judicial comment in relation to preserving the appropriate role of the jury:  “The ultimate responsibility for determining the guilt or innocence of the accused must remain with those in the jury box․  Most importantly, the constitutional provision allowing judicial comment does not authorize the judge to usurp the jury's exclusive function as the arbiter of questions of fact and the credibility of witnesses.  [Citations.]” ¹⁰

As Rodriguez observes, judicial comment must be carefully limited to avoid usurpation of the jury's function (42 Cal.3d at pp. 766–767, 230 Cal.Rptr. 667, 726 P.2d 113.)   Use of the eyewitness-factor instruction suggested by the majority will have just such an undesirable and improper effect.   The instruction incorporates information normally freely weighed by the jury into a directive by the court that will be of equal import with instructions to find, for example, guilt beyond a reasonable doubt.   Just as judicial comment has been carefully regulated because a jury may give it too much weight, so too should incorporating information into instructions by the court be carefully scrutinized because of the emphasis which a jury may give such instructions.

C. Cautionary Instructions

In addition to my substantial objections to the majority's approach to specific-factor instructions, I believe that both defendant's proposed instruction No. 5, and the majority's suggested instruction on the same subject, to the effect that eyewitness testimony be viewed with caution, are unwarranted.   The suggestion that such an instruction be given in addition to an eyewitnessfactor instruction breaks totally new ground.   The only California court previously addressing this type of an instruction rejected its use, observing that it “does not state a principle of law or establish a basis for instructing a jury.”  (People v. McCowen (1978) 85 Cal.App.3d 675, 679, 149 Cal.Rptr. 611.)   The majority repudiates McCowen, reasoning that “[a] cautionary instruction does not purport to state a rule of substantive law, yet neither is it a prohibited charge on a matter of fact.  [Citation.]  Rather it is an exercise of the trial court's broad supervisory power to ensure that the jury understands and properly discharges its duties.”  (Ante, p. 104 of 233 Cal.Rptr., at p. 295 of 729 P.2d.)   But the majority again goes far beyond even traditionally accepted cautionary instructions by informing the jury not only that it should view the evidence with caution, but also that such evidence is not always reliable and misidentification is not unknown.¹¹  Even standing alone, the proposed cautionary instructions are more emphatic and directive than those heretofore formulated.

The proposed cautionary instructions are particularly inappropriate when given in addition to eyewitnesses-factor instructions.   The majority cites the general principle that “when the law perceives a risk that a certain class of testimony, although admissible, is unreliable or otherwise likely to mislead the jury” a cautionary instruction is appropriate.  (Ante, p. 104 of 233 Cal.Rptr., at p. 295 of 729 P.2d.)   My colleagues rely on recognition by the United States Supreme Court and this court that eyewitness identification testimony is unreliable and then hold that it therefore “follows that a defendant against whom eyewitness identification testimony is introduced is entitled on request to an admonitory instruction on the subject.”  (Ante, p. 104 of 233 Cal.Rptr., at p. 295 of 729 P.2d.)   The majority's extrapolation from these principles is based on unexplained assumptions.   The factor instruction already required highlights in detail eyewitness-identification testimony;  an additional special cautionary instruction will put considerable further emphasis on this kind of evidence.   It is highly likely the jury will thereby be given the improper impression that the court considers the evidence not only particularly important but also overwhelmingly suspect.   This singling out of a category of evidence for special consideration is objectionable because it may inappropriately cause the jury to give it undue weight in its deliberations.

My colleagues cite no jurisdiction in which such a special cautionary instruction on this subject has been deemed appropriate, especially in conjunction with an instruction which highlights factors relating to eyewitness identification.   In fact, at least one other court expressly considering such an instruction reached the opposite conclusion.   In State v. Watson (W.Va.1984) 318 S.E.2d 603, defendant was charged with breaking and entering.   The only testimony placing defendant in the burglarized home was that of an 11–year-old.   Although the court held that the defendant was entitled to a specific instruction relating to identification, it refused a request for a special cautionary instruction similar to the ones at issue here.  (Id. at pp. 614–615.)

The West Virginia Supreme Court reasoned in part that the proposed cautionary instruction is essentially premised on “the theory that any eyewitness testimony is suspect, [which is] a legal point that we believe is too broad.” ¹²  (State v. Watson, supra, 318 S.E.2d at p. 615.)   Explicit cautionary instructions on top of “factor instructions” produce redundancies which may essentially unbalance the jury's deliberative process.

In sum, neither precedent nor principle supports the giving of cautionary instructions on eyewitness identification.   Eyewitness factor instructions provide the jury with a method of accurately evaluating eyewitness identification testimony and reasonably alert jurors to factors that may affect eyewitness identification.   Accordingly, I would reject the use of a special additional and cumulative cautionary instruction on the unreliability of eyewitness identification.

D. Conclusion

I would hold the trial court erred in refusing defendant's proposed instruction No. 3;  the error, however, was harmless.   Moreover, I emphatically disagree with the majority's suggested instructions which are unnecessary and inappropriate, and improperly mandate that the jury treat evidence in a particular way.   Such instructions will eliminate the need for any expert testimony on the issue of reliability of eyewitness identification, functionally vitiating much of our ruling in People v. McDonald, supra, and generally treating a category of “expert opinion” in a unique manner without any demonstration of a need to do so.

I would affirm the judgment in its entirety.

APPENDIX

CALJIC NO. 2.92 FACTORS TO CONSIDER IN PROVING IDENTITY BY EYEWITNESS TESTIMONY

Eyewitness 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 eyewitness identification testimony, you should consider the believability of the eyewitness 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 own recollection;]

Any other evidence relating to the witness' ability to make an identification.

FOOTNOTES

1.   Indeed, it was never even established how many robbers there were.   The most that can be inferred from the record is that there might have been as few as three or as many as six.

2.   He was found guilty of robbing Peter and Joe Marino, Joe Caminita, Bert Treanor, John McLaughlin, Edward Derry, Stephanie Sung, Viola Hom, and Janice Tong.   Of these, only Peter Marino and Stephanie Sung identified him as one of the robbers.

3.   He was found guilty of attempting to rob Erica Albertsen and Sharon Hom.   Only the former identified him.

4.   Wellington was later allowed to plead guilty to three counts of armed robbery and the People dismissed twelve other counts against him because of “trial difficulties.”   His prison sentence was suspended and he was placed on probation.

5.   All CALJIC instructions referred to herein, unless otherwise noted, are from the 4th edition (1979).

6.   “The burden is also on the State to prove, beyond a reasonable doubt, that the defendant is the person who committed the offense with which he is charged.  [¶] You must be satisfied beyond a reasonable doubt of the accuracy of the identification of each defendant as the person who committed the offense before you may convict him.  [¶] If, from the circumstances of the identification, you have a reasonable doubt whether [the] defendant was the person who committed the offense, then you must give the defendant the benefit of the doubt and find him not guilty.”   The current version of this instruction (1982 rev.) omits the second sentence.Contrary to the title and use note of this instruction in CALJIC, it should be given in every case in which identity is in issue.

7.   “The defendants in this case have introduced evidence for the purpose of showing that they were not present at the time and place of the commission of the alleged offense for which they are on trial.  [¶] If, after a consideration of all of the evidence, you have a reasonable doubt that a defendant was present at the time that the crime was committed, the defendant is entitled to an acquittal.”

8.   Defendant's special instruction No. 1 reads:“The identity of the defendant as the person who committed the crime is an element of every crime.   The burden is on the State to prove beyond a reasonable doubt the accuracy of the identification of each of the defendants as a person who committed the offense.   You are not permitted to find a defendant guilty of the crime charged against him based on the testimony of a witness identifying a defendant as the perpetrator of the crime unless you are satisfied beyond a reasonable doubt of the accuracy of that identification.”Defendant's special instruction No. 4 reads:“The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged.   It is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence.   You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant as the person who committed the offense before you may convict him.   If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty.”  (Fns. omitted.)

9.   Defendant's special instruction No. 2 reads:“In determining whether a reasonable doubt exists as to the guilt of Mr. WRIGHT you may consider evidence that:“1. All of the robbers wore masks;“2. The testimony of Inspector Cisneros regarding Peter Marino's comments at the time he viewed defendant WRIGHT's photograph;“3. The testimony of Inspector Cisneros regarding whether or not he showed Erica Albertsen defendant WRIGHT's photograph, and whether or or not she recognized that photograph;“4. The testimony of Inspector Cisneros regarding Stephanie Sung's comments at the time she signed defendant's WRIGHT's photograph;“5. People's Exhibit Number 20, a pink card with the name Stephanie Sung.”

10.   In declining to give the instruction the court explained to counsel, “I feel that the instruction is argumentative, you shouldn't take that to mean you can't present that theory to the jury and say, ladies and gentlemen, in telling the identification you can consider, et cetera, et cetera, et cetera.  [¶] I mean, that's fine with me, but as far as me focusing in on specific counts on the evidence in the case, I don't think that's appropriate any more than if I did it for the District Attorney, and I said you can also consider such and such and such and such.  [¶] I don't think the Court should be in the position of placing the emphasis on particular pieces of evidence unless there was some need to explain to the jury how this relates to the law, so these instructions, in my judgment, should not be given.”

11.   E.g., that the victim was the sole eyewitness to identify the defendant, was a stranger to the city, and may have been under the influence of alcohol;  and that the defendant did not flee from the city after the crime, but expressed his willingness to do what he could to recover the property and capture the robbers.  (Id. at pp. 513–514, 29 p. 953.)

12.   When the proposed instruction focuses exclusively or even primarily on the testimony of one witness, it also runs afoul of a well-settled corollary of the foregoing rule, i.e., that it is “ ‘improper for the court to single out a particular witness and to charge the jury how his evidence should be considered.’ ”  (People v. Lyons (1958) 50 Cal.2d 245, 271, 324 P.2d 556.)   Instructions similar to defendant's No. 2 have been held improper on this ground as well.  (See, e.g., People v. Smith (1977) 67 Cal.App.3d 45, 49–50, 136 Cal.Rptr. 387;  People v. Whittaker (1974) 41 Cal.App.3d 303, 308, 115 Cal.Rptr. 845.)

13.   Penal Code section 1127 clearly draws the distinction.   It reiterates the court's constitutional power to “comment on the evidence,” but goes on to provide with regard to instructions that “Either party may present to the court any written charge on the law, but not with respect to matters of fact․”  (Italics added.)

14.   Sears relied on Wilson for more than its theory:  the language of Sears that defendant invokes, quoted hereinabove, first appeared in Justice Houser's opinion in Wilson.  (100 Cal.App. at p. 432, 280 P. 169.)   We therefore look to the facts and holding of Wilson for a better understanding of that language.

15.   As requested by defendant, the instruction reads:“Identification testimony is an expression of belief or impression by the witness.   Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.“In evaluating the identification testimony of a witness, you should consider the following:“1. The circumstances under which the original observation was made, including:  the witness's ability to observe when considering lighting and obstructions, if any;  the length of time the witness had to make the original observation;  whether or not the witness was under stress at the time of the observation;  and any other circumstances which you find from the evidence;“2. The circumstances of the subsequent identification, including whether or not the identification was the product of the witness's own independent recollection, and the strength of that identification;  and“3. Any occasions on which the witness failed to make an identification of the defendant or made an identification inconsistent with his or her identification at trial.”

16.   The out-of-state cases are analyzed in Note, Eyewitness Identification Testimony and the Need for Cautionary Jury Instructions in Criminal Cases (1983) 60 Wash.U.L.Q. 1387, 1402–1419.  (See also Annot., 23 A.L.R. 4th 1089 (1983).)   The need for a Telfaire instruction in appropriate cases is discussed in the cited note at pages 1419–1435 and other recent scholarly writings.  (Comment, Helping the Jury Evaluate Eyewitness Testimony:  The Need for Additional Safeguards (1984) 12 Am.J.Crim.L. 189, 212–223;  Comment, Seeing is Believing?   The Need for Cautionary Jury Instructions on the Unreliability of Eyewitness Identification Testimony (1983) 11 U.San Fernando Val. L.Rev. 95, 114–122;  see also Johnson, Cross-Racial Identification Errors in Criminal Cases (1984) 69 Cornell L.Rev. 934, 974–985.)

17.   Footnote 1 in Guzman quotes four instructions;  we refer only to the first of those four, hereinafter called the Guzman instruction.   We criticized Guzman on other grounds in People v. McDonald, supra, 37 Cal.3d 351, 371, footnote 18, 208 Cal.Rptr. 236, 690 P.2d 709.

18.   People v. Boothe (1977) 65 Cal.App.3d 685, 689–690, 135 Cal.Rptr. 570;  People v. Kelley (1977) 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457;  People v. Ware (1978) 78 Cal.App.3d 822, 841–843, 144 Cal.Rptr. 354;  People v. Castellano, supra, 79 Cal.App.3d 844, 852–859, 145 Cal.Rptr. 264;  People v. Hall (1979) 95 Cal.App.3d 299, 311–313, 157 Cal.Rptr. 107;  People v. Hurley (1979) 95 Cal.App.3d 895, 900–901, 157 Cal.Rptr. 364;  People v. Vindiola (1979) 96 Cal.App.3d 370, 384–386, 158 Cal.Rptr. 6;  People v. Fulton (1980) 109 Cal.App.3d 777, 781, 167 Cal.Rptr. 436.

19.   People v. Sequeira (1981) 126 Cal.App.3d 1, 17–18, 179 Cal.Rptr. 249;  People v. Levingston (1982) 136 Cal.App.3d 724, 727, 186 Cal.Rptr. 417;  see also People v. Glaude (1983) 141 Cal.App.3d 633, 641–642, 190 Cal.Rptr. 479;  People v. Lybrand (1981) 115 Cal.App.3d 1, 12–13, 171 Cal.Rptr. 157 (alternative holding);  People v. Henderson (1985) 163 Cal.App.3d 1001, 1011–1013, 209 Cal.Rptr. 883 (semble ).

20.   After the court ruled it would not give any of defendant's special instructions, the following colloquy took place:“[By defense counsel] I would ask the Court and invite the Court and Your Honor, if you have—if you think that there is some grammatical or wording or issue with any of these instructions, or if you think that there is a way that we could discuss them in detail and make some alterations, if you have specific objection to any of them, I would ask that we do that.  [¶] I don't want to have the proposed instructions not given by the Court when there is some possibility that they could be revised in consultation in a way that the Court would feel would be appropriate, and that type of revision is something that's also discussed at some length in these cases, that the Court may have to make some changes in proposed instructions as opposed to just refusing to give proposed instructions altogether, so I would invite the Court and request the Court's guidance in making alterations of that nature that may be required.“THE COURT:  All right.   Well, I am going to deny the instructions.   I don't feel it's my responsibility to prepare instructions for any counsel in the case.”

21.   Such an instruction was given—on request of the People—in People v. Jackson (1985) 164 Cal.App.3d 224, 238–240, 210 Cal.Rptr. 680.

22.   Such an instruction, based on West and Palmer, was recently proposed by the editors of CALJIC (No. 2.92 (1984)).

23.   E.g., Loftus, Eyewitness Testimony (1979) pages 189–190, 201;  Note, Did Your Eyes Deceive You?   Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969, 1004–1005.

24.   In oral argument the Attorney General stated that “the People have no objection” to a properly worded instruction on this topic.   We suggest such an instruction in the appendix.   It is not meant to be exhaustive, and lists only the factors most commonly affecting eyewitness identification testimony;  in any particular case factors not shown by the evidence should be deleted, and omitted factors should be added.   The instruction refrains from explaining the effects of some of the listed factors because they are likely to be known to all jurors (e.g., time, distance, and lighting).   It explains the effects of others because they may well be misunderstood (e.g., the level of witness stress, the influence of postevent information), and of still others because they are especially important (e.g., the circumstances surrounding pretrial identifications).   Each explanation finds support in numerous studies reported in the professional literature (see, e.g., McDonald 37 Cal.3d at p. 365, 208 Cal.Rptr. 236, 690 P.2d 709);  no effect that can fairly be deemed controversial is mentioned.

25.   The instruction reads:“Where the prosecution has offered identification testimony, that is, the testimony of an eyewitness that he saw the defendant commit the act charged, such testimony should be received with caution.   An identification by a stranger is not as trustworthy as an identification by an acquaintance.   Mistaken identification is not uncommon, and careful scrutiny of such testimony is especially important.”

26.   Of course, if the risk is too great the evidence may be inadmissible as a matter of law (e.g., People v. McDonald, supra, 37 Cal.3d at p. 373, 208 Cal.Rptr. 236, 690 P.2d 709, and cases cited [evidence inadmissible under the Kelly-Frye rule] ) or as a matter of discretion (Evid.Code, § 352 [evidence excludible if its probative value is substantially outweighed by the probability of “misleading the jury”] ).

27.   Again, we are not to be taken as implying that defendant's No. 5 is a model instruction whose wording could not be improved.   We suggest an instruction on the subject in the appendix.

FOOTNOTE.   The trial court should delete all references to factors not shown by the evidence.

1.   An appropriate case would be one in which the instruction has been requested and identification is a crucial issue (ante, p. 103 of 233 Cal.Rptr., at p. –––– of ––– P.2d), and there is no other corroborative evidence.

2.   All further references to CALJIC instructions are from the Fourth edition 1979 unless otherwise specified.   I have attached a copy of CALJIC No. 2.92 in an appendix to this opinion.

3.   People v. West (1983) 139 Cal.App.3d 606, 609, 189 Cal.Rptr. 36, relied on by the majority, is the seminal case requiring specific factor instructions in addition to the more general instructions on eyewitness identification.   The instruction in West listed eight factors for the jury to consider in determining identity.   These “identification” factors were promptly formalized in CALJIC No. 2.92, supra, entitled “Factors to Consider in Proving Identity by Eyewitness Testimony.”

4.   In fact, the only testimony which the jury requested reread during its deliberations related to the co defendant's identity.

5.   My argument does not ignore the well established difference between jury instructions, evidence and argument.   Examining the factors brought out through testimony will not necessarily alleviate the need for the factor instruction nor will it always cure any error in failing to give such an instruction.   Here, however, the fact that the factors listed in the requested instruction were amply presented to the jury at trial, in addition to the other related general instructions which were given, leads to the conclusion that there was no prejudice.

6.   There exists another expert view, albeit a minority one, on the threshold issue of whether expert testimony on factors affecting eyewitness identification should be used at trial.   These experts argue that the claimed effect of these psychological factors on witness accuracy is either not proved or is likely to be obvious to jurors.  (People v. McDonald, supra, 37 Cal.3d at p. 369, fn. 15, 208 Cal.Rptr. 236, 690 P.2d 709.)

7.   In fact, in addition to usurping certain areas of expertise, the instruction purports to direct the jury in certain “common sense” principles as well.   For example, jurors are told “memory fades over time” and “a witness may subconsciously incorporate into his memory information from other sources․”  These directives further highlight the unusual nature of the adopted instruction.   They not only emphasize certain factors, which may or may not be relevant, but also inform the jury of how to approach its evaluation of the evidence by emphasizing only potential disabilities in the testimony presented.

8.   Utilization of the suggested instruction may well preclude the prosecutor from the use of any effective cross-examination of an expert who is presented.   It is also a concern what effect it will have if the prosecutor puts on an expert who gives contrary testimony regarding the effect of psychological factors.   What instructions should be given?

9.   The majority implies that its rationale for preferring such proposed instructions over expert testimony is that “[f]ew defendants can afford to retain such experts.”  (Ante, p. 103 of 233 Cal.Rptr., at p. 294 of 729 P.2d.)   They cite no data for this conclusion.   In fact, in view of the right of indigent defendants to funds for experts, where appropriate, the majority's off-hand and unsupported assertion becomes highly questionable.   Moreover, monetary reasons should not dictate discarding well established principles protecting the role of the jury as the trier of fact with respect to expert opinion.

10.   Although Cook's holding has been overruled to the extent that “it forbids all judicial comment on the evidence to a deadlocked jury” (People v. Rodriguez (1986) 42 Cal.3d 730, 770, 230 Cal.Rptr. 667, 726 P.2d 113), the principles relied on here are still valid. (Ibid.)

11.   Compare the language of both defendant's proposed instruction No. 5 (ante, p. 98, fn. 15 of 233 Cal.Rptr., at p. 291, fn. 15 of 729 P.2d) and the majority's suggested cautionary instruction (ante, p. 105 of 233 Cal.Rptr., at p. 296 of 729 P.2d) with the following cautionary instructions:CALJIC No. 2.27—Sufficiency of Testimony of One Witness (“Testimony which you believe given by one witness is sufficient for the proof of any fact.   However, before finding any fact [required to be established by the prosecution] to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of fact depends.”);CALJIC No. 2.71—Admission Defined (“An admission is a statement made by defendant other than at his trial which does not by itself acknowledge his guilt of the crime(s) for which he is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence;  [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.  [¶] Evidence of an oral admission of the defendant should be viewed with caution.”) and;CALJIC No. 3.18—Testimony of Accomplice to be Viewed with Distrust (“The testimony of an accomplice ought to be viewed with distrust.   This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case.”).

12.   The proposed special cautionary instruction in Watson provided:  “[W]here the prosecution has offered identification testimony, that is, the testimony of an eye witness that she saw the Defendant commit the act charged, such testimony shall be received with caution.   An identification by a stranger is not as trustworthy as an identification by an acquaintance.   Mistaken identification is not uncommon.   The witness' opportunity to observe the perpetrator during the commission of the act charged is of great importance in determining the credibility of her identification.   Testimony of the witness that she is positive of her identification may be considered by you, but does not relieve you of the duty to carefully consider her identification testimony and to reject it if you find that it is not reliable.   Careful scrutiny of such testimony is especially important when, as in this case, it is the only testimony offered by the prosecution to connect the Defendant with the act charged.”  (State v. Watson, supra, 318 S.E.2d at p. 615, fn. 15.)

MOSK, Justice.

BIRD, C.J., and BROUSSARD, GRODIN and GARCIA, JJ.*, concur.