People v. Aho

Opinion

SONENSHINE, J. Defendant, Conrad Aimo Aho, appeals his conviction of driving a vehicle without the owner’s consent (Veh. Code, § 10851) and robbery (Pen. Code, § 211).

I

Michael Kellner, while locking his Fiat automobile late at night in a restaurant parking lot, was told by a man holding a handgun, “Hey, man, throw down your keys and run.” He did, but hid behind a wall where he saw the robber drive away in the Fiat. Kellner immediately called police, telling them the robber was armed, had blond, collar-length hair, was 5 feet 11 inches to 6 feet tall, and weighed about 165. He did not notice any facial hair.

A month after the incident, Kellner was shown a photographic lineup but was unable to make an identification. At the preliminary hearing, two and a half months later, Kellner noticed Aho sitting alone in one area of the spectator section and told an officer he recognized him as the robber. The hearing was continued and Kellner again identified Aho at the next proceeding.

Aho testified in his own defense at trial and denied both charges. He and several defense witnesses testified he always had a beard, except for a few months some six months prior to the robbery. They also claimed Aho was in Arizona the weekend of the crime and that he never used idioms such as “Hey, man.”

The court gave CALJIC instructions No. 2.91, reasonable doubt and identity; No. 2.20, credibility of witnesses; and No. 4.50, reasonable doubt and alibi. Aho, however, claims the court erred in refusing to give five special jury instructions concerning proof of identity beyond a reasonable doubt, relying on People v. Sears (1970) 2 Cal.3d 180 [84 Cal.Rptr. 711, 465 P.2d 847]; People v. Guzman (1975) 47 Cal.App.3d 380 [121 Cal.Rptr. 69]; People v. Hall (1980) 28 Cal.3d 143 [167 Cal.Rptr. 844, 616 P.2d 826]; and People v. West (1983) 139 Cal.App.3d 606 [189 Cal.Rptr. 36]. [661]In addition he asserts the court improperly instructed on admissions and claims sentencing error.

II

It is axiomatic a defendant in a criminal trial is entitled to instructions which relate particular facts to legal issues. (People v. Sears, supra, 2 Cal.3d 180, 190.) Where the facts involve eyewitness identification, the obligation is no less compelling. Following Sears courts have been nearly unanimous in concluding it is error to refuse patterned eyewitness identification instructions, notwithstanding the time-consuming nature of the task and the availability of CALJIC instructions covering the same general principles (CALJIC Nos. 2.91, 2.20, 4.50). (People v. Hall, supra, 28 Cal.3d 143; People v. Glaude (1983) 141 Cal.App.3d 633 [190 Cal.Rptr. 479]; People v. West, supra, 139 Cal.App.3d 606; People v. Guzman, supra, 47 Cal.App.3d 380; Contra, People v. Levingston (1982) 136 Cal.App.3d 724 [186 Cal.Rptr. 417]; People v. Sequeira (1981) 126 Cal.App.3d 1 [179 Cal.Rptr. 249]; People v. Lybrand (1981) 115 Cal.App.3d 1 [171 Cal.Rptr. 157].)