Blum

I concur with my colleagues in the affirmance of Blum’s judgment of conviction. But the concurrence is reluctant and compelled by the force of Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ], holding that “decisions of [the Supreme Court] are binding upon and must be followed by all the state courts of California. . . .”

There is no disagreement- with the expressed conclusions of my esteemed colleagues. But applying long recognized high authority, their opinion impliedly follows the “any substantial evidence” rule, and determines that Blum’s conviction was, as a matter of law, supported by the evidence at his trial. This rule although repeatedly confirmed, and never disapproved, by the state’s Supreme Court is nevertheless, in my opinion, not the law of California, at least on criminal appeals.

The reason:

A reviewing court has the duty in a proper case to determine whether a guilty verdict is supported by evidence. It does not weigh the evidence, nor does it pass upon the credibility of witnesses; such considerations are for the trier of fact. The function of the appellate court is to determine whether, as a matter of law, the…

Defendant appeals from a judgment of conviction on a jury verdict finding him guilty of first degree robbery (Pen. Code, § 211). The main issue is whether the pretrial identification procedures were so suggestive as to deny defendant due process of law.

On March 22, 1972, at about 9 p.m., Thomas Paganini, a liquor store proprietor, was alone in his store. His back was to the front door when he heard someone enter the store. When he turned around he saw a man holding his left hand over his mouth and a gun in his right hand. The gun was pointed at Paganini. The man demanded that Paganini open the cash register, and when he did, the man came around behind the counter and took about $70 from the cash register with his left hand. As he did so he was at one time within a foot and a half from where Paganini was standing. After taking the money the robber departed. He was in the store approximately two to three minutes.

Paganini summoned the police to whom he described the robber as white, about 28 or 29 years of age, about 5 feet 9 or 10 inches tall, weighing about 200 pounds, with a round shaven face that had rough or pockmarked skin and a small moustache, with hair that was…