People v. Jackson

Opinion

ROTH, P. J.

Appellant Lonnie Jackson, found guilty by a jury of two counts of first degree robbery (Pen. Code, § 211a) and two counts of using a firearm during the commission of the robberies (Pen. Code, § 12022.5), appeals from the judgment entered pursuant to the verdict.

At noon on September 8, 1972, a lone gunman who on two previous occasions in the company of a female companion had visited and “cased” a jewelry store at 11300 Santa Monica Boulevard in the City of Los Angeles, entered the store and in the presence of three customers robbed the owner and his wife of approximately $20,000 in jewels and cash and escaped.

As a result of identification of appellant’s photo, appellant was arrested on about January 10, 1973, and charged with the robberies of which he was convicted.

At trial the owner of the jewelry store made a positive identification of appellant. Defense counsel, to impeach the positive identification, established that at the preliminary hearing the owner had stated that appellant merely resembled the robber. Defense counsel then inquired directly for an explanation and the owner replied that on the day before the preliminary hearing his wife had received a threatening phone call and that he was frightened when he testified at the preliminary hearing.

The wife at the trial also identified appellant as the robber and defense counsel established that at the prehminary hearing, she, too, testified that appellant resembled the robber. When asked for the reason for the change she also stated that equivocal testimony at the preliminary had been engendered by fear because óf a phone call threatening her and her family. Appellant was not connected with the phone call, Defense counsel

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moved for a mistrial contending that the probative value of the phone call evidence was outweighed by its prejudicial effect and therefore it was error to permit its introduction. (Evid. Code, § 352.)

The question of why there had not been a positive identification at the preliminary hearing was relevant and probative in light of the positive identification made at trial and the explanation was also relevant and probative. Appellant was entitled to and the court was obligated to give a cautionary instruction to the jury in connection with said testimony, had one been requested. (Evid. Code, § 355.) No such request was made. (2) Questions of admissibility of evidence are primarily for the trial court.