In re I.B.

Filed 2/13/08 In re I.B. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant I. B. (I. B.), a minor, appeals from the jurisdictional and dispositional orders in which the court sustained three counts of second degree robbery and one count of making a criminal threat. He argues that the court erred in denying his motion to suppress evidence of the victims identification of him. He also maintains that there was no substantial evidence supporting the finding of making a criminal threat. We affirm.

II.

PROCEDURAL BACKGROUND

In August 2006, the Solano County District Attorney filed a juvenile delinquency petition alleging that I. B. committed three counts of second degree robbery (Pen.[1] Code,  211) and three counts of making a criminal threat ( 422). The court dismissed two of the criminal threat counts for insufficient evidence. Following a contested jurisdictional hearing, the court sustained the three counts of second degree robbery and one count of making a criminal threat. The court ordered I. B. placed at Fouts Springs Youth Facility. We construed I. B.s notice of appeal from the juvenile courts jurisdictional order to be from the dispositional order under California Rules of Court, rule 8.400(f)(1).

III.

FACTUAL BACKGROUND

On August 1, 2006, at approximately 7:53 p.m., three minor victims, M. M., J. F. and S. B.[2]were walking on Fifth Street in Fairfield. A group of three people passed them, and one of the three, later identified as I. B., approached the victims. M. M. testified that got in my face. I. B. looked at [M. M.] up and down and walked by. The two other victims were up ahead . . . a little, about 5 to 10 feet away. M. M. looked over, and I. B. had S[.] B[.] in his grasp. I. B. grabbed S. B, walked to M. M., and grabbed his shoulder. I. B. then went through the victims pockets. M. M. testified I. B. said Ill shoot you, though the victims did not see a gun. I. B. took a cell phone from M. M.s pocket and a phone and wallet from S. B.s pocket. He then approached J. F., and took a phone and wallet from his pocket.

I. B. walked away, and J. F. called the police from a business in the neighborhood. When police arrived, M. M. described I. B. as a light-skinned African-American male, about 5 feet 6 inches to 5 feet 10 inches, 160 pounds, with dreadlocks and green eyes.

Two days after the incident, Fairfield Police Detective Ferro brought several copies of a photo line-up to J. F.s residence. The line-up included six photos of African-American young men with their hair worn in a similar style as that described by M. M. I. B.s photo was included in the first position, and there was a tree trunk behind him in the photo. Detective Ferro read the following admonition to each of the victims, which was also written on the bottom of the photo array: In a moment Im going to show you a group of photographs. Take your time and carefully look at all the photographs before you make any decisions. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hairstyles, beards and mustaches may easily be changed. Also, photographs may not depict the true complexion of a person. They may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photos or any other differences in the type or style of photographs. When you have looked at all the photos, tell me whether you see anyone you recognize.

M. M. identified I. B., indicating he was 100 percent certain he was the person who robbed him. J. F. was separately shown a copy of the photo line-up, and also identified I. B. as the person who robbed him. S. B. likewise identified I. B. as the person who robbed him, and indicated he was 100 percent certain.

Dr. Robert Shomer, a psychologist, testified at the hearing on I. B.s motion to suppress as an expert in eyewitness identification. He testified that eyewitness identification is the least reliable means of identification, and that testing procedures can alter the results. Dr. Shomer also testified that human beings in stressful situations take in only the generalities of a person. He explained that a description of a young black male, light complected was a generality, while describing a particular eye color was not. In a photo lineup, if one picture is substantially different than any of the others, the witness will tend to look at the alternative thats different more than any of the others. If one photograph is distinctly different than the others, witnesses . . . are more apt to pick it even though that person was not the person they saw. Dr. Shomer testified that he could not state, however, that the three eyewitnesses identification of I. B. was mistaken.

III.

DISCUSSION

A. The Photo Line-Up

I. B. maintains thatthe court erred in denying his motion to suppress evidence of all three eyewitnesses identification of him on the grounds that the photo line-up was impermissibly suggestive. He asserts that admission of the identification evidence denied him his due process rights. We review deferentially the trial courts findings of historical fact . . . but we independently review the trial courts ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive. [Citation.] (People v. Gonzalez (2006) 38 Cal.4th 932, 943 (Gonzalez).)

  In deciding whether an extrajudicial identification is so unreliable as to violate a defendants right to due process, the court must ascertain (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances.  [Citations.] (Gonzalez, supra, 38 Cal.4th at p. 942.) Impermissible unfairness exists if the photo array identification procedure suggests in advance of a witnesss identification the identity of the person suspected by the police. [Citation.] (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

I. B. argues that [a]lmost every factor cited by Dr. Shomer that renders a photo line-up impermissibly suggestive was present . . . . I. B. claims that the photo array was impermissibly suggestive because his photo was in position one, had a different background, and was sharper. He also asserts that the initial descriptions of the robber by the witnesses were very general, and that two of the victims believed they had been asked to view the photo array because the police had caught the person who robbed them.

The court acknowledged that I. B.s photo st[ood] out in that it was in the number one position in the array, was sharper and had a tree trunk in the background. The court nevertheless denied the motion, explaining that although I. B.s photo stood out, the photo lineup was not unduly suggestive. Following the courts denial of I. B.s renewed motion, the court stated: I want to clarify that my opinion of the lineup is not that it was tainted, but it indeed was not optimum. [] With respect to the testimony of Dr. Shomer[,] I cant think of anything Dr. Shomer said that I would disagree with. I was well aware of the apparent nature of eyewitness identification being [fraught with] perils. . . .

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[] . . . I understand the difficulties with the identification procedure protocol, but I do note that there are a lot of factors in these particular circumstances that render it, in my opinion, trustworthy. Such as this was much more [than] one of those quick traumatic incidents where someones stress level is so high that you cant get a good identification to begin with, and then that is atrophied by the further passage of time, this was . . . prolonged. . . . Its worthy of note that it began not under stress. It began as a conversation face to face before the coercion aspects of it began. It occurred in daylight. It occurred face to face. It was prolonged over several minutes. And I am also struck that the initial description given by the three victims is consistent with the ultimate identification.

Courts have found many factors may cause a defendants photo to stand out in a lineup, but nonetheless are not impermissibly suggestive. The position of the photograph in the array [[N]o matter where in the array a defendants photograph is placed, he can argue that its position is suggestive. [Citation.] (People v. Johnson (1992) 3 Cal.4th 1183, 1217 (Johnson)], the fact that defendant is the only individual in the lineup wearing jail clothing (id. at p. 1216), the discoloration of the defendants photo (Gonzalez, supra, 38 Cal.4th at p. 943), and a different border or glossiness of the defendants photo (Johnson, supra, 3 Cal.4th at p. 1217) are all distinctive factors, but are not suggestive of the identity of the person suspected by the police. [Citation.] (People v. Hunt (1977) 19 Cal.3d 888, 894.) Likewise, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] (People v. Brandon, supra, 32 Cal.App.4th at p. 105.)

I. B. maintains that People v. Carlos (2006) 138 Cal.App.4th 907 (Carlos) mandates a different result. In Carlos, the court held the identification procedure was impermissibly suggestive because defendants photo stood out in that it was in the number five position and was the only one in the array to have a name and an identification number written directly under it. (Id. at p. 912.)

Here, I. B.s photo stood out based on its sharpness, placement, and tree in the background. None of these factors, however, suggested to the witnesses that he should be selected. The fact that I. B.s photo had a tree in the background suggests, in contrast to the lineup in Carlos, that I. B. was not in custody when the photo was taken. The relative sharpness and placement of I. B.s photograph are distinctive, but nothing about those factors suggested I. B.s photo should be selected. (Gonzalez, supra, 38 Cal.4th at p. 943.)

Finally, I. B. claims the fact that each victim testified that none of the other photos in the array matched his description of the person who robbed them rendered the lineup impermissibly suggestive.  Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him.. . . (Gonzalez, supra, 38 Cal.4th at p. 943, citing People v. Carpenter (1997) 15 Cal.4th 312, 367, italics added.) Our review of the photographs contained in the lineup indicates that I. B. overstates the significance of the distinguishing characteristics seen in the photographs, and overlooks their more compelling general similarities. The lineup contained six pictures of young, African-American men with similarly styled hair. The fact that only I. B.s photo matched the witnesses description exactly does not render the lineup impermissibly suggestive.

B. Sufficiency of the Evidence of Criminal Threat

I. B. argues that no substantial evidence supports the courts finding that he made a criminal threat against M. M. We consider all of the evidence in the light most favorable to the judgment, giving the prevailing party the benefit of every reasonable inference from the evidence tending to establish the correctness of the trial courts decision, and resolving conflicts in support of the trial courts decision. [Citations.] (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.) In doing so, we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277.)

I. B. claims that the evidence was insufficient as a matter of law because the only evidence that I. B. made a criminal threat came from M. M.s testimony, and M. M. only thought that I. B. said he would shoot him. Section 422 provides that a person commits a criminal threat if he or she willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . . ( 422.)

At the outset, we note that M. M.s testimony was not that he was unsure whether or not I. B. had threatened him, but that I. B., saidhe told ushe saidI think he said, Ill shoot you, but we didnt see no gun. A reasonable interpretation of this testimony is that M. M. was not sure of the specific words I. B. used. M. M. told Detective Ferro that I. B.s words were: If you move, Ill shoot you. He also told Fairfield Police Officer Timm that I. B. had said he would shoot him. Additionally, the fact that the other two eyewitnesses did not hear the threat does not render the evidence insubstantial: even the uncorroborated testimony of a single witness may constitute substantial evidence. (People v. Lewis (2001) 25 Cal.4th 610, 646.) Accordingly, we cannot say that no substantial evidence supports the courts finding as to the criminal threat against M. M.

IV.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] We refer to these participants only by their initials because they were minors at the time of the incident.