People v. Cabrellis

CONLEY, P. J. The defendant, James Cabrellis, appeals from his second successive conviction of the first degree robbery charged in the information. The first adverse judgment was reversed on appeal by the Court of Appeal, Third Appellate District, because of what it held to be an erroneous account in the testimony of a Sacramento police detective of a conversation with the accused. In this second trial, the prosecution avoided the pitfall in question, and nothing is said in the appeal concerning it.

The sole issue raised by appellant now is whether, under the facts of the ease, the lineups conducted by the police department were “so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was denied due process.” After a careful examination of the entire record, we are convinced that the evidence before the jury was sufficient to warrant its implied finding against the defendant. It should be kept in mind, of course, that a Court of Appeal does not retry a case by passing on conflicting evidence. Its duty is fulfilled if it determines, as we do here, that there is substantial evidence to justify the conviction.

While prosecution witnesses were in some respects rather hazy in their several early attempts to identify the defendant, there was evidence based on their experience and their views of the defendant in the courtroom that led them to his final positive identification as one of the guilty participants in the first degree robbery. We cannot legitimately second-guess the jury.

Dalton James Lyons testified that on February 23, 1966, he was driving his own car, a 1955 Ford, about North Sacramento, with Duane Perry in the front seat with him, and two other young men in the back seat, James Cabrellis and Roger Williams. The car passed Cliff’s Market at Ford and Taylor [339]Streets and was temporarily parked in the vicinity. Lyons testified that he heard mention of a robbery from the back seat and, as he did not want any part of it, he started his car and drove off, going about two blocks, when the other occupants of the car said they were “just kidding”; Cabrellis said he wanted to get something to drink, and the driver went around the corner and came back to the vicinity of the market. He parked his car by the store; Lyons heard certain noises from the rear seat of the car which sounded to him like the clicking from loading pistols; the defendant and Williams got out and went to the back of the automobile where they talked. Perry then alighted and also went to the back and gave something to the other two, although Lyons said he did not see what it was. Williams and Cabrellis then went into the store; both men had on head scarves. They were only inside for two or three minutes and then came out at a fast walk. They got in the car, and it moved away. Lyons drove to a service station, and Williams gave him $5 to pay for gasoline, after which Lyons took them to their house on Seventh Avenue. As he left the market, Williams had a gun as did Cabrellis and Perry. Lyons noted that a woman in a stationwagon drove up to Cliff’s Market just prior to the entry of the two young men as above mentioned; she was alone and parked in back of Lyons’ car; she got out of her automobile and went into the store, then came out, looked at all of them again, and got in her car and drove off.