People v. Stone

This is an appeal from a judgment of conviction entered after defendant Emanuel Stone was found guilty by a jury of robbery (Pen. Code, § 211) and to have used a firearm in the commission thereof (Pen. Code, § 12022.5). Defendant’s sole contention on appeal is that the trial court erred prejudicially in refusing to give the jury an instruction (CALJIC No. 2.91) relating the reliability of eyewitness testimony to the requirement of proof beyond a reasonable doubt. We agree that the refusal was error, but find it harmless.

Facts

On September 12, 1979, at about 11:30 p.m., an individual identified as defendant entered Allen’s Donut Shop in Rancho Cordova, California. He wore a dark sport jacket, white or light pants, a shoulder holster, and carried a handgun. As he entered he was attempting to pull a paper bag (in which eye holes had been cut) down over his face. As he approached the counter, however, he pushed the bag back onto the top of his head after he tripped over a chair, apparently as a result of restricted vision. He ordered the two employees present, Muriel. Alex and Betty Larson, to the counter. There Alex had an opportunity to observe his face closely as she…