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The People v. Gerald Wormly

October 21, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GERALD WORMLY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F05032)

The opinion of the court was delivered by: Robie , J.

P. v. Wormly

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Gerald Wormly was charged with three bank robberies that occurred within two months. The issue at trial was identity of the robber. A jury found him guilty of the last robbery and could not reach a unanimous verdict on the first two robberies. The court declared a mistrial as to those counts and sentenced him to 30 years to life in prison.

Defendant appeals, contending the court: (1) violated his right to due process in denying his motion to exclude one of the victim's positive identification of defendant; (2) violated his right to confront the witnesses against him because his counsel could not "appropriate[ly] and adequate[ly] cross-examine" one of the victims; (3) deprived him of his due process right to present a defense when it excluded third-party culpability evidence; and (4) erred in imposing certain fees without sufficient evidence of his ability to pay. Finding no merit in these contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A

U.S. Bank Robbery On May 1, 2008

Around noon, Gerald Bess was working as a teller at the U.S. Bank at Alhambra Boulevard and J Street in Sacramento. He was approached by an African-American man in his mid to late 20's who was 5 feet 9 inches tall and 150 pounds wearing a baseball cap. The man told Bess, "'I have a gun, give me all the money.'" Bess gave the man about $600, and the man walked out. Bess pulled the silent alarm. The robber was later seen wearing sunglasses and riding a mountain bike.

After police arrived at the bank, Detective Heather Hendrickson took Bess for an in-field show up of a suspect named Williams who matched Bess's description of the robber. Bess erroneously*fn1 identified Williams as the robber, telling police, "I am pretty sure that is him."

Police failed to document who had made the erroneous identification (i.e. Bess) and what exactly that person said when making the identification. Hendrickson had no independent recollection of the erroneous positive identification, but she did make an entry on the computer aided dispatching log that there was a "positive" identification of the suspect. She explained that before she would say it was a positive identification, "it would have to be pretty certain. [She] generally won't say that it is a positive identification if it's: I think it's him, or I am pretty sure it's him. It's got to be pretty certain for [her] to say that it's positive."

B

Citibank Robbery On June ...


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