People v. Brown

Opinion

CROSBY, J.

Ross Brown II appeals his conviction of burglary (Pen. Code, § 459), attempted robbery (Pen. Code, §§ 664, 211), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)), claiming the court inadequately instructed the jury on reasonable doubt as to eyewitness identification and improperly permitted witnesses to explain their bias against him.

I

Gerald Clements, owner of a Union Oil gas station in the City of Orange, was alone in his office on December 3, 1981, when a man appeared at the doorway with a shotgun. Clements and the man struggled briefly before Clements escaped and telephoned the police. Within 15 minutes of the attack, Clements described the man to officers as a white male, 6 feet tall, 200 pounds, with several days’ growth of facial hair and wearing a plaid Pendleton-type jacket and dark pants.

On several occasions during the next few months, Clements saw a man fitting the assailant’s description using a pay telephone at the station. Clements photographed him and advised investigating officers. Based on this identification, Bill Solano, a resident of an apartment building near the gas station, was arrested.

Joseph Hallett, acquainted with both Brown and Solano, then told police Brown, not Solano, was the robber. Clements was subsequently shown a photograph of Brown and confirmed Hallett’s information. He admitted his previous identification of Solano was erroneous. Clements also identified Brown in a jail lineup, at Brown’s preliminary hearing, and at trial.

Hallett, Solano, and a third Brown acquaintance, Jim Paulus, testified at trial. After receiving immunity, Solano and Paulus testified on the night of the crime, Brown borrowed Paulus’ shotgun to “scare somebody” who

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owed Brown money. This individual lived in Solano’s apartment building, and Brown sent Paulus inside to see if the man was home. When Paulus returned to the car, however, Brown was gone. Solano arrived home a few moments later, saw Paulus, and joined him on the street. They heard a gunshot and saw a man they could not identify run from the nearby gas station. Brown then appeared with the weapon and said he had just attempted to rob the gas station. Brown later admitted the attempted robbery to Hallett. Solano recalled Brown had a beard and moustache on the evening in question but said he wore a navy-blue knee-length jacket.