People v. Sanchez

Opinion

ORTEGA, J.

A jury convicted appellant of second degree robbery with use of a knife. (Pen. Code, §§ 211, 212.5, subd. (b), 12022, subd. (b).) The only evidence connecting appellant to the crime was the victim’s identification, in court and at a photographic lineup. Appellant’s witnesses testified that at the time of the robbery, appellant was on the job as a maintenance worker. Appellant testified and was impeached with a prior grand theft conviction. He was sentenced to prison. On appeal he seeks reversal because (I) the court erred in failing to instruct the jury sua sponte on CALJIC No. 2.92, (II) the prosecutor committed misconduct in questioning a defense witness about his criminal record, and (III) the court erred in allowing impeachment with the prior grand theft conviction. We reject his contentions and affirm the judgment.

[76]

Discussion

I

No case has imposed a sua sponte duty to instruct the jury on CALJIC No. 2.92.

1

The cases have gone no further than requiring that it “or a comparable instruction should be given

when requested

in a case in which identification is a crucial issue and there is no substantial corroborative evidence. [Citation.]”

(People

v.

Wright

(1988) 45 Cal.3d 1126, 1144 [248 Cal.Rptr. 600, 755 P.2d 1049], italics added.)

No case has specifically held that the trial court need not give CALJIC No. 2.92 sua sponte. However, as respondent points out, such a ruling must be implied from

People

v.

Blair

(1979) 25 Cal.3d 640 [159 Cal.Rptr. 818, 602 P.2d 738]. There, the California Supreme Court noted at pages 662-663 that the defendant had requested neither CALJIC No. 2.91 (prosecutor’s burden of proving beyond a reasonable doubt the accuracy of eyewitness identifications) “nor the more elaborate instructions on identification set forth in