In re D.A.

Filed 6/25/08 In re D.A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Shep Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court sustained a petition filed under Welfare and Institutions Code section 602 and found true the allegation that minor and appellant D.A. committed one count of second degree robbery. On appeal, D.A. contends there is insufficient evidence to support the true finding on the robbery count because the witnesses out-of-court identifications resulted from a suggestive show-up procedure. He also contends that certain probation conditions should be modified. We agree that certain conditions of probation should be modified, but we otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

Around 9:50 p.m. on December 11, 2006, Franklin Caballero, Junior Ramos, and Johnny Montoya^[1]were walking on Vermont Boulevard headed to Wilshire to catch a bus. They saw a group of around 11 women and men, all of whom were Black. Some of the group came from a nearby Dennys. About four members of the group approached Caballero, Ramos, and Montoya and asked where they were from. Someone called Caballero and his friends bitch and motherfucker. One man gestured to indicate he had a hidden weapon, and he rifled through Caballeros pockets, taking $128, a watch, a gold chain, and a cell phone.

Ramos and Montoya ran away, but three girls waylaid them. Ramos saw some of the people who attacked Caballero go into the Dennys, while others left. Ramos or Montoya called the police, and officers arrived within two minutes. Ramos told them he saw 12 people involved get on a bus. Officers therefore stopped the bus and pulled some people off. Caballero, Ramos, and Montoya identified nine people, including D.A., as being involved in the incident. None of the items taken from Caballero were recovered from any of the suspects, including D.A.

Franklin Caballero and Junior Ramos were unable to identify anyone in court. In court, Montoya tentatively identified D.A. as a person who had surrounded Franklin: He said,  I think it was that one. ^[2]

II. Procedural background.

On January 10, 2007, the juvenile court sustained a petition filed under Welfare and Institutions Code section 602 and found true that D.A. committed one count of second degree robbery. (Pen. Code, 211.) The court declared him to be a ward of the court and placed him home on probation. The court also ordered him to complete 100 hours of community service. The court imposed conditions of probation. This appeal followed.

DISCUSSION

III. Sufficiency of the evidence to support sustaining the petition on the robbery count.

D.A. contends there is insufficient evidence to support a finding he participated in the robbery. His contention centers on a claim that the show-up procedure was suggestive; hence, there is insufficient evidence to identify him as a participant in the crime. We disagree that the show-up procedure was suggestive, and we therefore further disagree that there is insufficient evidence D.A. committed the robbery.

A. Additional facts.

Detective Gilbert Alonso arrived at the scene at about 10:00 p.m., by which time officers had pulled 10 to 12 people, all Black, off a bus.^[3] Ramos had told officers that he saw people involved in the attack get on the bus. A witness had also provided a description to officers of their assailants, although Detective Alonso did not know what was the description, and the description was not made a part of the police reports.^[4] Detective Alonso then conducted a field show-up in the Dennys parking lot of the 12 people who had been detained. Before conducting the show-up, he did not ask any of the victims to describe their assailants, although a description had been given to another officer.

The detective admonished each witness separately, and each witness said he understood the admonishment. The detective then had one witness view one person at a time. Ramos confirmed that officers brought the suspects one by one. An officer accompanied each suspect, who was handcuffed and placed against a wall, while the witness stood about 35 feet away. Light from a Dennys sign and from the sidewalk lit the area. Detective Alonso would ask one witness to look at a suspect while the other two witnesses were with officers approximately 20 feet away.

Caballero, Ramos and Montoya identified the same nine people as being involved in the incident, and they also agreed that the same three suspects were not involved in it. The three suspects whom the victims agreed were not involved were also Black. Caballero said that D.A. had approached, surrounded, and cursed at him. Ramos said that D D.A. had followed Caballero.

B. The show-up procedure was not suggestive.

Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. (People v. Yeoman (2003) 31 Cal.4th 93, 123; see also Manson v. Brathwaite (1977) 432 U.S. 98, 106-114.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (Ibid.) Unfairness must be proved as a demonstrable reality, not just speculation. (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)

We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) To determine whether the evidence is sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

D.A. argues that the show-up procedure employed here was unfair, and led to an unreliable identification, because, first, there was no evidence of the criteria the officers used to select the people who were taken off the bus; second, there was no evidence that standard field admonishment cards were used; and, third, the evidence suggests that the witnesses gave collective, rather than separate, identifications.^[5]

D.A. first argues that the absence in the record of what was the description of the assailants given to the police makes us unable to determine whether the victims show-up identifications were sufficiently reliable. He cites People v. Cuevas (1995) 12 Cal.4th 252, 257, 275. Cuevas rejected a prior rule that an out-of-court identification in all cases is insufficient by itself to sustain a conviction. Cuevas instead held that the sufficiency of an out-of-court identification is reviewed under the substantial evidence test. Thus, in Cuevas, witnesses gave a description of the assailant, but the witnesses later recanted. The prosecution established a motive for the recantations. The court held that, notwithstanding the recantations, the prior descriptions were substantial evidence that the defendant, whom the witnesses had been previously identified, was guilty of the crime charged. (Id. at pp. 276-277.)

Notwithstanding the absence of evidence of what the victims told the police about what their assailants looked like, the evidence here is sufficient to support the out-of-court identifications. Although Officer Alonso did not know what description had been given to his fellow officers, there was evidence that officers did not just randomly pull people off the bus. Rather, Caballero testified he first identified his assailants while they were on the bus.^[6] Also, all three victims separately identified the same nine people as being involved in the crime, and separately exonerated the same three people.

Next, D.A. suggests that the identifications are unreliable because there is no evidence standard field admonishment cards were used. Detective Alonso, however, testified he admonished the witnesses before they viewed the suspects. He admonished

Caballero that there [were] individuals detained. And based on the officers initial preliminary investigation . . . , it was possible that some of the individuals that were detained were not, may or may not be responsible for the crime being investigated, which was robbery at that moment, and we needed to do a field show up to rule whether or not the individuals temporarily in custody are responsible for the crime or not. Thus, there was evidence that the witnesses received a proper admonishment before the field-show-up.

D.A. counters with testimony from Ramos. Ramos testified that an officer said,  We have stopped these people. We want you to tell us what they did.  D.A. argues that this testimony shows that officers did not give a proper admonishment. Officers instead suggested to the victims who they should identify. A problem with this argument is Ramos was responding yes to a question phrased by the prosecutor; Ramos did not testify that this is precisely what an officer told him. Moreover, Detective Alonso testified he told the witnesses that the detained people may or may not have been involved. The trier of fact was therefore entitled to believe that the witnesses, who told Detective Alonso they understood the admonishment, followed it.

D.A. refers to other testimony from Ramos to support his final argument that the field-show-up procedure was suggestive. Ramos testified, They had us sitting in a place for us to identify them. D.A. says this testimony indicates that the three witnesses were together when they identified the suspects. It does not. Ramos could have merely meant that the officers sat him and his friends down, but not necessarily together. In fact, Detective Alonso testified he separated the witnesses while they were viewing the suspects, and he had them view the suspects one at a time. Ramoss statement does not expressly contradict this testimony. D.A. then speculates that even if the witnesses were separated, they could have nevertheless signaled their identifications to each other through nods or headshakes. Anythingis possible, but the standard of review does not depend on what is possible. Rather, we must look to the record, which here contains nothing to suggest or support such collusion.

To the contrary, of the 12 people the witnesses independently viewed, the witnesses each identified the same nine people as being involved and identified the same three people as not being involved. To be sure, there is no evidence in the record concerning what these three people looked like (other than that they were Black). But the absence of that evidence does not, based on this record, render the identifications made unreliable. Indeed, Detective Alonso said that the witnesses did not hesitate in making the identifications, instead, they were pretty positive. D.A. submits that pretty positive is not the same as being certain. It may or may not be exactly the same. Detective Alonso was never asked to clarify what he meant. In any event, D.A. does not suggest how they are substantively different for the purpose of determining whether the out-of-court identifications were unreliable.

We conclude that the show-up procedure was not suggestive. Therefore, there was sufficient evidence that D D.A. committed the robbery.

V. Conditions of probation.

D D.A. next contends that conditions of probation Nos. 15A, 16, and 21 should be modified.

Condition of probation No. 15A directs D D.A. not to participate in any type of gang activity. He argues that the condition should be modified to preclude him from participating in known gang activity, otherwise it infringes on his association rights. Although the People agree that the condition should be modified, we do not. Courts have broad discretion in establishing conditions of probation in juvenile cases. (In re Antonio R. (2000) 78 Cal.App.4th 937, 940.) Consistent with the rehabilitative goals of probation, courts may restrict the places minors may go and the people they may contact. (Id. at p. 942.) Condition of probation No. 15A is specific: It prohibits D.A. from participating in, implicitly, criminal, gang activity. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629.) D.A. presumably knows what activity is and is not criminal. Moreover, condition of probation No. 15, of which No. 15A is a subpart, identifies the gang with which D.A. is not permitted to associate: Young Organized Players. Thus, the probation condition is reasonably specific, not overbroad, and it is unnecessary to impose a knowledge requirement.

Condition of probation No. 16 provides: Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person. D.A. contends, and the People concede that the condition should be modified to include a knowledge requirement. (See generally, In re Sheena K. (2007) 40 Cal.4th 875, 890-891; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 [if a knowledge requirement is not explicitly stated, it will be implied].) We agree that it is necessary to impose a knowledge requirement requiring D.A. not to remain in the presence of any person whom he knows to be unlawfully armed.

Condition of probation No. 21, as stated in the minute order, provides: Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate. But when orally imposing the condition of probation at the sentencing hearing, the juvenile court omitted the stay-away order. Although a courts oral pronouncement of judgment usually prevails over a minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2), we think it is clear that the courts failure to impose the stay-away order was a mere oversight. In other conditions of probation, the court limited D.A.s associations and access to various substances, such as alcohol. It is unlikely the court intended to prohibit D.A. from associating with gang members, but not with known drug users. Therefore, the stay-away order should be imposed.

D.A. requests that if the stay-away order is imposed, that a knowledge requirement be added. This request is proper. The condition of probation is therefore modified to order D.A. to stay away from places he knows users congregate.

DISPOSITION

The judgment is affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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^[1] Johnny Montoya is also referred to as Johnny Portillo in the record.

^[2] Montoya also said he did not see D.A. in the act, but I did see that he was one of them that was there when they detained everyone.

^[3] Ten people were pulled off the bus and two others were detained.

^[4] It is unclear which witness provided the description.

^[5] D.A.s codefendant, R.S., made these same contentions. We rejected them in People v. R.S. (Apr. 17, 2008, B196501 [nonpub. opn.]).

^[6] D.A. suggests that it is unclear whether descriptions were in fact given. He relies on Caballeros answer of no to the question, Is it true that you did not provide a description of the assailants to police before you saw the group of Black young people? ~(RT 10)~ The question is ambiguous. Caballeros answer could mean he did give a description, which is consistent with Detective Alonsos testimony and Caballeros other testimony that he identified people on the bus.