Curbside identifications that were not 100 percent certain were not so inherently improbable that there was insufficient evidence of identification. Three men robbed a woman outside a café. Defendant was found four blocks from the scene a short time later and detained because he met the general description. At a curbside show-up, the victim stated she was 80 percent certain that he was the robber but that she could not be more certain because the robber had his face covered. A witness who confronted the robbers was completely sure in identifying the defendant at a separate curbside show-up, but another witness refused to identify him. There were discrepancies in the initial descriptions and an expert witness gave opinions and information about inaccurate identifications. The police found that the defendant possessed a do-rag which could have been the mask worn during the robbery and his alibi was false. The challenge to sufficiency of evidence to support the identification was rejected.
Instruction on conspiracy as a potential theory of liability for a robbery with three perpetrators was not error. Penal Code section 31 defines a principal as a person “concerned in the commission of a crime.” In re Hardy (2007) 41 Cal.4th 977, 1025, explicitly concluded that one who conspires to commit a felony is a principal. The legislative intent in the passage of section 31 and the elimination of the common law distinctions between principals in the first degree, principals in the second degree and accessories before the fact was to make all persons principals who are concerned in the commission of the crime.