In re JOHNNY G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOHNNY G., Defendant and Appellant, 25 Cal. 3d 543

Opinion MANUEL, J. Johnny G., a minor, appeals from an order adjudging him a ward of the juvenile court (Welf. & Inst. Code, § 602) upon a finding that he committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)). The assault victim, Carlos Herrera, testified through an interpreter that he and Johnny lived three houses from one another. On the evening in question Herrera agreed to do Johnny’s laundry for $1. He returned the laundry and began walking home.

As he crossed a driveway he noticed two persons at its entrance; moments later he heard footsteps behind him, turned, and was assaulted and beaten by two men. Before losing consciousness he heard one of the assailants say something about missing clothing. Herrera testified that he did not regain consciousness until after being taken to the hospital. He did not remember speaking to a police officer at the scene of the assault or identifying Johnny as one of his assailants. On cross-examination he said that he did not know who attacked him.

When asked if he knew whether any identification he might have made at the time was accurate, he answered: “How can somebody do that if you are unconscious? ... I don’t know. When you are knocked out, how can I say it was him or him?” On the crucial issue of identity, Herrera’s testimony as a whole tended to exonerate Johnny. To begin with, although Herrera knew Johnny and had talked with him shortly before the assault, he testified he did not recognize the voice that spoke of the missing clothing.

Second, although Herrera was able to describe his assailants as Latins, 18 to 20 years old, and of substantially different heights, he testified that he did not recognize either of them. Third, when asked to compare their stature with that of the minor herein, Herrera testified that one was taller than Johnny and the other was shorter. Finally, Herrera repeated several times that from the circumstances it appeared to him the attackers were the two men he passed after he left Johnny’s house.

The prosecutor sought to establish Johnny’s identity as one of the assailants’ by introducing an extrajudicial statement assertedly made by Herrera to Los Angeles Police Officer Cooney after the assault. Officer Cooney found Herrera lying near the street with his face covered with blood. Cooney said that Herrera was conscious and coherent, though “a little shook up.” Over objection Cooney testified that Herrera told him that a man had approached him on the street and asked him to help move some things out of the latter’s house.

After they went inside, however, the man accused Herrera of failing to return some of his clothes and beat him with a board until he crawled out onto the sidewalk. Cooney said he pointed at that time to Johnny, who was standing nearby, and asked Herrera in English if that was the man who had attacked him, and Herrera replied “Yes.” Johnny did not testify or present any defense. Following argument, the judge denied Johnny’s motion to strike Cooney’s testimony regarding Herrera’s extrajudicial statement and identification.

The judge found that the statement was inconsistent with Herrera’s testimony and that Herrera’s lapse of memory was partial, not total. The court admitted the testimony as substantive evidence under Evidence Code

section 1235. Johnny contends that the admission of the testimony regarding Herrera’s extrajudicial identification as substantive evidence violated the confrontation clause of the California Constitution (Cal. Const., art. I, § 15). He also contends that there was insufficient evidence to support the finding that he committed the assault. We consider the latter contention first since a determination that the evidence is insufficient to support the finding would bar retrial under the federal double jeopardy clause (U. S. Const., 5th Amend.) as recently interpreted by the United States Supreme Court. (See People v.

Pierce (1979) 24 Cal.3d 199, 209-210 [155 Cal.Rptr. 657, 595 P.2d 91]; Burks v. United States (1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141]; Greene v. Massey (1978) 437 U.S. 19 [57 L.Ed.2d 15, 98 S.Ct. 2151].) As will appear, we conclude that the contention has merit and accordingly find it unnecessary to reach the question whether the minor’s rights under the confrontation clause of the California Constitution were violated.

It has long been the rule in this state that “An extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.” (People v. Gould (1960) 54 Cal.2d 621, 631 [7 Cal.Rptr. 273, 354 P.2d 865]; see also People v. Belton (1979) 23 Cal.3d 516, 535-537 [153 Cal.Rptr. 195, 591 P.2d 485] [conc. opn. by Jefferson, J.]; In re Eugene M. (1976) 55 Cal.App.3d 650 [127 Cal.Rptr. 851]; Jefferson, Cal.

Evidence Benchbook (June 1978 supp.) § 10.1, pp. 131-134.) Since the only evidence connecting the minor with the charged assault was such an identification, the order appealed from cannot stand. In People v. Gould, the victim identified the two defendants from a group of photographs shown her shortly after the crime. Defendant Gould admitted complicity when the police confronted him with the victim’s photographic identification of him. Defendant Marudas denied any knowledge or involvement, and Gould named someone else when asked about his accomplice.

At trial the victim was unable to repeat her earlier identifications. A police officer testified about the earlier identifications, stating that the victim was sure of them at the time. We held that the evidence of the extrajudicial photographic identifications was properly admitted as independent evidence of identity even though the witness was unable to repeat the identification at trial. We further held, however, that such identification evidence by itself is insufficient to sustain a conviction.

An extrajudicial identification that cannot be confirmed by the witness at trial, in our view, was lacking in sufficient reliability and substantiality to form the sole identification evidence on which the conviction was based. We affirmed Gould’s conviction since it was supported by evidence of his own admission of complicity as well as by the evidence of the victim’s extrajudicial identification. We reversed Marudas’ conviction, however, because the only evidence tending reasonably to connect him with the crime was the extrajudicial identification which could not be confirmed at trial.

Gould was decided prior to the adoption of the Evidence Code. The drafters of the Evidence Code were aware of Gould and discussed the dual nature of its holding in their comments: “Sections 1235 and 1238 codify exceptions to the hearsay rule similar to that which was recognized in People v. Gould .... Sections 1235 and 1238 deal only with the admissibility of evidence; they do not determine what constitutes evidence sufficient to sustain a verdict or finding.

Hence, these sections have no effect on the holding of the Gould case that evidence of an extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a criminal conviction in the absence of other evidence tending to connect the defendant with the crime.” (Cal. Law Revision Com. com. to Evid. Code, § 1238, West’s Unann. Evid. Code (1968 ed.) pp. 284-285.) It is thus clear that the drafters of the Evidence Code did not intend to change the Gould rule regarding the sufficiency of evidence to sustain a conviction.

The evidence in this case is insufficient to sustain the order under Gould. The only evidence connecting Johnny with the offense is the extrajudicial statement assertedly made by Herrera to Officer Cooney after the assault. At trial Herrera said he was unconscious, did not remember making this statement, and described his assailants as not resembling Johnny. Neither Herrera’s acquaintance with Johnny nor Johnny’s presence at the scene provides any reasonable support for the adjudication.

No consciousness of guilt on the part of Johnny or intimidation of Herrera by him could reasonably be inferred from these factors. In the absence of other evidence tending to connect Johnny with the assault, the evidence of Herrera’s prior inconsistent identification of Johnny was insufficient to sustain the adjudication order. Since the evidence was insufficient as a matter of law to support the finding that the minor committed the offense charged, further proceedings are barred by the double jeopardy clause (U.S. Const., 5th Amend.) under the rule of Burks v. United States, supra, 437 U.S. 1, and Greene v.

Massey, supra, 437 U.S. 19, applicable in California (People v. Pierce, supra, 24 Cal.3d at pp. 209-210). The order appealed from is reversed with directions to dismiss the proceeding. Bird, C. J., Tobriner, J, Clark, J, and Richardson, J, concurred.

Section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with

Section 770.”

Section 770 requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial. We rejected the assertion that Marudas’ statement to the police regarding his whereabouts on the day of the crime—“ ‘I don’t know, but by the time I get to court I will have four or five people to place me where I want to be’ ”—gave rise to a reasonable inference of attempted concealment or consciousness of guilt which might have supported the conviction.

We found this statement clearly distinguishable from those made in other cases where consciousness of guilt could reasonably be inferred from statements of fact that were incredible, later proved false, or contradicted by the defendant’s subsequent testimony. (People v. Gould, supra, 54 Cal.2d at pp. 630-631.) The remark about missing clothes that Herrera testified having heard during the attack could equally well have come from any other person who had used Herrera’s services to do his laundry. For similar rulings in other jurisdictions, see e.g., Government of Virgin Islands v.

Civil (3d Cir. 1979) 591 F.2d 255, 260 (uncorroborated accomplice testimony); Pollard v. State (1978) 264 Ark. 753,756 [574 S.W.2d 656,658] (same); Brown v. State (Tex.Crim. 1978) 576 S.W.2d 36, 42-43 (uncorroborated confession).