People v. Austin CA4/2

I. BACKGROUND

In January 2018, Jermoni Stewart and his friend Jordan Bass were sitting on jet

skis parked in the driveway of Bass’s mother’s house in San Bernardino when two men

walked toward them. One of those men threw what Bass believed to be a potential gang

sign. Bass, noticing that the two men were pulling out guns, ducked underneath one of

the jet skis.

1 Undesignated statutory references are to the Penal Code.

2 The assailants opened fire. Investigators recovered 13 casings from two guns at

the scene. Stewart was struck five times, including twice in the head, and died within

minutes. Bass was shot multiple times but survived. Bass stated there was no one else

nearby at the time.

Neighbors testified as to seeing two men walking down the street, hearing gunfire,

and seeing the two men run toward a vehicle before speeding off. However, none of

those neighbors could identify Austin as one of the men.

About a week after the shooting, Bass was presented with a photographic lineup,

and when shown a picture of Austin, Bass remarked that Austin “would look more like”

one of the assailants “if he was darker and shorter.” At trial, when asked whether he

recognized…