Despite difficulties with the eyewitness testimony, the evidence was sufficient in People v. Mohamed (Dec. 5, 2011, D058046), __ Cal.App.4th __ [2011 DJDAR 17332] to allow the jury to conclude that the defendant was one of the three masked robbers.
The victim was robbed at gunpoint outside a restaurant by three men wearing masks. At a curbside showup that evening, the victim said she was 80 percent sure that he was the man who, wearing a form-fitting mask that ended between his nose and lower lip, took her cell phone, car keys and $20. She based her identification on the defendant's clothing, facial hair, jaw line and build. She also identified defendant as the robber at the preliminary hearing and at trial.
A witness inside the restaurant saw a man approach and pull a black beanie mask down to his mouth area. As the witness exited the restaurant he saw the man and two others running away. At the showup the witness said he was "completely sure" that defendant was the same man, because he was wearing the same clothes. At trial he said he had "a little bit" of doubt, but was still confident in his identification.
The defendant was arrested four blocks away shortly after the robbery. Defendant was holding an umbrella in a manner that partially blocked his face. He fit the description of one of the robbers, had a do-rag that matched the fabric of the masks, and provided the officers with a false alibi.
An eyewitness identification expert testified that the accuracy of such identifications can be affected by variables such as lighting, distance, duration of exposure, race and stress. Small obstructions, such as a partial face mask, can greatly reduce accuracy. If more than one person is involved in an incident, the rates of correctly recognizing a single individual are significantly reduced. If a person has distinctive cues, such as tattoos and scars, accuracy goes up, but if the witness' description omits a distinctive cue then the perpetrator almost certainly did not have that distinctive feature.
The expert also opined that curbside lineups are the least reliable of all identification tests, and that when there is a cross-racial misidentification the error is almost exclusively a false positive. Once a witness identifies a person, he or she is predisposed to identify the same person again. Finally, if a witness does not specifically state that the person is or is not the perpetrator, but instead comments on similar features such as hair or clothes, the remarks should be treated as a rejection rather than a selection.
Although the expert provided the jury with information about the reliability of eyewitness identifications, the jury was not obliged to accept these opinions or find them applicable in the case, said the court. An identification witness is not required to see all, or even part, of a person's face, because identity may be established by size, appearance, similarity of voice, features or clothing. Considering the witnesses' descriptions of the robbers, the defendant's proximity to the scene, his possession of the do-rag and his false alibi, there was sufficient evidence to support the conviction.