Perry

I respectfully dissent because more is involved here than review of a trial judge’s examination of a photograph and the citation by this court of two Court of Appeal decisions to seal the result. What is involved is substantial interference with the due process guarantee of a fair trial.

A defendant’s right to present evidence in his own defense is so fundamental that it constitutes an element of due process of law. (Cf., Chambers v. Mississippi (1973) 410 U.S. 284, 302 [ 35 L.Ed.2d 297, 313 , 93 S.Ct. 1038 ].) Several California cases have expressly recognized the tension between this fundamental right and any exercise of discretion under Evidence Code section 352, which tends to limit the defendant’s presentation. (Cf., People v. Lavergne (1971) 4 Cal.3d 735, 744 [ 94 Cal.Rptr. 405 , 484 P.2d 77 ]; People v. Mayfield (1972) 23 Cal.App.3d 236, 242-243 [ 100 Cal.Rptr. 104 ]; People v. Reeder (1978) 82 Cal.App.3d 543, 557 [ 147 Cal.Rptr. 275 ]; People v. Stevenson (1978) 79 Cal.App.3d 976, 989-990 [ 145 Cal.Rptr. 301 ].)

A stark example of that push and pull is the situation illustrated by this action: to raise a reasonable doubt as to guilt, the defendant pro *271 poses to…

Cornelius Perry appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)).

Appellant followed and attacked a young woman who was walking in Golden Gate Park in San Francisco. Appellant choked and struck the victim and banged her head against trees. The victim cried out for help, a man came up, and appellant fled. The victim identified appellant at trial from his general appearance and from a curved scar on his forehead.

Jacques Cusin, a teacher who had been supervising a soccer game nearby, had seen appellant a few minutes earlier. When Cusin saw what *270 was happening, he chased appellant. Police officers joined the chase and appellant was captured. The victim immediately identified him.

At trial the defense offered to prove that one Mathew Wolf had robbed and raped a woman in Golden Gate Park three years earlier and that Wolf had robbed and raped another woman in the same park about an hour before the charged offense. The court examined a photograph of Wolf and determined that “except for the race of the man there is nothing similar” before…

Cornelius Perry appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)).

Appellant followed and attacked a young woman who was walking in Golden Gate Park in San Francisco. Appellant choked and struck the victim and banged her head against trees. The victim cried out for help, a man came up, and appellant fled. The victim identified appellant at trial from his general appearance and from a curved scar on his forehead.

Jacques Cusin, a teacher who had been supervising a soccer game nearby, had seen appellant a few minutes earlier. When Cusin saw what was happening, he chased appellant. Police officers joined the chase and appellant was captured. The victim immediately identified him.

At trial the defense offered to prove that one Mathew Wolf had robbed and raped a woman in Golden Gate Park three years earlier and that Wolf had robbed and raped another woman in the same park about an hour before the charged offense. (1) The court examined a photograph of Wolf and determined that "except for the race of the man there is nothing…