Filed 11/1/17 In re D.T. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 4


In re D.T., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.T.,
Defendant and Appellant.
A144178

(Alameda County
Super. Ct. No. SJ14023158)


Minor D.T. appeals an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602, based on a finding that he committed attempted robbery (Pen. Code, § 211). D.T. contends that out-of-court and in-court identification evidence was introduced at the contested hearing in violation of his right to due process, and that the juvenile court’s jurisdictional findings are not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2014, Lorenzo T. and Ramon T. were walking near Tennyson High School in Hayward, California. Ramon T. and Lorenzo T. walked by a group of young people who yelled at them in English. Lorenzo T. and Ramon T. do not speak English, and kept walking.
Two male members of the group followed Ramon T. and Lorenzo T. and eventually ran after them. The first male was African-American, had a “thin” face, and wore a black hooded sweatshirt over a baseball cap. The second male was white and “chubby.” He wore a light-colored sweatshirt with a hood over a baseball cap.
Ramon T. and Lorenzo T. ran from the two males, and Ramon T. was able to get away. However, the African-American male caught Lorenzo T., pulled him to the ground, and began punching him. The white male returned from chasing Ramon T. and joined the African-American male in punching and kicking Lorenzo T. At some point during the assault, the African-American male tried to put his hand in Lorenzo T.’s pocket. Lorenzo T. stopped him, and the African-American male became angry and punched Lorenzo T. in the face so hard that Lorenzo T. fell and almost fainted. Ramon T. estimated that the attack lasted for about five minutes, after which the attackers returned to their group.
Police officers were dispatched to the scene and within three minutes detained three suspects nearby. Officer Jose Najera asked Ramon T. and Lorenzo T. to identify the suspects and gave them the standard infield showup admonishment “that these people may not be involved, may or may not be involved.” Ramon T. and Lorenzo T. were driven to the three suspects in an unmarked vehicle and viewed them through the vehicle’s rear view mirror. Ramon T. and Lorenzo T. both stated that the first suspect was not involved in the assault, but that D.T. and his codefendant were the ones who beat up Lorenzo T.
On June 25, 2014, the Alameda County District Attorney filed a petition under Welfare and Institutions Code section 602 charging D.T. with attempted robbery (Pen. Code, §§ 211, 664). D.T. moved to suppress the evidence of the out-of-court showup identification as the product of an illegal detention of the suspects. The juvenile court granted the motion on that basis. At the contested jurisdictional hearing, Lorenzo T. testified, identifying D.T. in court as one of his assailants and stating he had no doubt about his identification. As detailed below, the trial court later ruled that counsel for D.T.’s codefendant had opened the door to admission of the suppressed out-of-court identifications, so they ultimately were admitted into evidence at the jurisdictional hearing. After hearing all of the evidence and argument, the juvenile court sustained the petition. This appeal followed.
DISCUSSION
On appeal, D.T. argues that: (1) the juvenile court violated his due process rights by failing to suppress the out-of-court showup identification as unduly suggestive and unreliable, and the in-court identification as the product of that out-of-court identification; (2) in the alternative, his trial counsel was ineffective in failing to move to suppress the in-court identification as the product of the out-of-court identification; and (3) there is insufficient evidence as a whole to support the juvenile court’s jurisdictional findings.
I. The Out-of-court Identification Was Not Unduly Suggestive
D.T. argues that the out-of-court identification was unduly suggestive because (1) the police failed to properly admonish the victims that they were under no duty to identify the individuals presented, and (2) the police presented the suspects as arrested, implying that probable cause existed to suspect them of wrongdoing.
The People argue D.T. has forfeited this argument because it was never raised in the trial court. They are correct. D.T. moved to suppress the out-of-court showup as the fruit of an unlawful detention unsupported by reasonable grounds to suspect that the detainees had committed a crime. His motion contains no reference to an unduly suggestive identification process. When the motion was argued, neither defense counsel claimed the out-of-court showup was suggestive; they argued only that the officer who detained D.T. and his codefendant had insufficient information to justify the detention. On that basis—and that basis alone—the trial court granted defense counsel’s motion to suppress the infield showup as a fruit of an illegal detention. D.T.’s argument that the out-of-court identification should have been suppressed as unduly suggestive is forfeited because it was never raised in the trial court. (Evid. Code, § 353, subd. (a); People v. Mattson (1990) 50 Cal.3d 826, 853–854.)
Even if we were to overlook this procedural default, D.T.’s argument fails on the merits. D.T. claims that Ramon T. and Lorenzo T. “did not remember being admonished,” but the record suggests the contrary. In fact, and as D.T.’s brief appears to acknowledge elsewhere, Ramon T. testified that the police told him that they “were not sure whether it was the three of them.” And Lorenzo T. testified that he was told the police had detained three individuals, and that “[t]hey could be them or it could not be them.” In addition, Officer Najera testified that, before the identification, he gave Ramon T. and Lorenzo T. “the typical admonishment that we give, that these people may not be involved, may or may not be involved.”
D.T.’s second argument is that the identification procedure was unduly suggestive because the police presented the detainees as arrested. D.T. acknowledges that there is nothing inherently suggestive in presenting suspects in handcuffs (e.g., In re Carlos M. (1990) 220 Cal.App.3d 372, 378, 386), but asserts that this case is different because the police did not have probable cause to arrest or detain the suspects here. D.T. cites no authority for the proposition that a lack of reasonable grounds to detain a suspect creates an unduly suggestive identification procedure, and lack of such reasonable grounds to detain a suspect plainly does not cause him to “ ‘stand out’ . . . in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.) We reject D.T.’s argument that the out-of-court identification procedure was unduly suggestive.
We also find the out-of-court identifications reliable. Lorenzo T. observed D.T. for five to ten seconds when he was fifteen feet away, and then for another two or three seconds from two feet away as D.T. was punching him. Ramon T. watched for five minutes from six or seven meters away as D.T. beat up his friend. Ramon T. focused on the assailant’s faces so he could “see who they were.” D.T. and his associates were detained almost immediately after the assault a short distance away. At the infield showup, Lorenzo T. and Ramon T. both positively identified D.T. and his codefendant—and exonerated the third suspect—within minutes of the assault. The record supports the trial court’s implicit finding that the out-of-court identifications were reliable.
II. The In-court Identification Was Properly Admitted
D.T. also argues that Ramon T.’s and Lorenzo T.’s in-court identifications should have been suppressed as the product of a suggestive out-of-court identification. As discussed above, the trial court initially suppressed evidence of the out-of-court identification as the fruit of an unlawful detention of the suspects. After counsel for D.T.’s codefendant elicited on cross-examination a detailed description of the out-of-court identification, the trial court ruled that the door had been opened to evidence of that identification, and allowed the prosecution to question Ramon T. and Lorenzo T. about it. D.T. does not challenge that ruling on appeal. As noted, we have already rejected D.T.’s argument that the out-of-court identification was suggestive. Because D.T. does not argue that identification should have been suppressed on any other basis, we find no error in the admission of the in-court identification evidence.
In any event, we are satisfied that the in-court identification had a basis independent of the out-of-court identification, namely, Ramon T.’s and Lorenzo T.’s original memory of their attackers from having seen them during the attack. At the hearing, counsel for D.T.’s codefendant argued that any in-court identification by Ramon T. should be suppressed because it was the product of the then-suppressed out-of-court identification. The trial court found that there was an independent basis for Ramon T.’s recollection: “He’s testified at least twice that he remembers his face. I think maybe four times.” Indeed, Ramon T. had already testified that he remembered the attackers’ faces. As for Lorenzo T., he testified that he was able to see D.T.’s face during the attack, and that he initially saw D.T. for five to ten seconds, and later for two or three seconds while D.T. was hitting him, from about two feet away. Lorenzo T. identified D.T. in court, testified that he was “sure,” and that there was no doubt in his mind that D.T. had attacked him. We conclude that the in-court identification had an origin independent of the out-of-court identification. (See People v. Yokely (2010) 183 Cal.App.4th 1264, 1276.)
III. There Was Sufficient Evidence to Support the Jurisdictional Findings
D.T. also argues that the evidence was insufficient to sustain the jurisdictional findings. In particular, he argues that the in- and out-of-court identifications cannot be relied upon because the witnesses had no prior familiarity with D.T. and had limited opportunity to observe the assailants during the incident because they were wearing hoodies and baseball caps. D.T. also argues the initial descriptions of the suspects do not match D.T.’s appearance.
In determining the sufficiency of the evidence, we ask whether “ ‘ “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 403.)
As discussed above, we do not find the out-of-court identification to be unreliable or unduly suggestive. As D.T. acknowledges, even a single in-court identification alone is sufficient evidence to sustain a wardship adjudication. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) The other factors D.T. contends cast doubt on the identification were explored at the hearing, and were for the finder of fact to consider in weighing the evidence. (See Ibid. [“[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court.”].) We find that substantial evidence supports the juvenile court’s findings.
DISPOSITION
The juvenile court’s order is affirmed.


 





_________________________
Kennedy, J.*


We concur:


_________________________
Ruvolo, P. J.


_________________________
Rivera, J.





















A144178/In re D.T.