In re Q.F.

Filed 11/20/09 In re Q.F. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A petition filed pursuant to Welfare and Institutions Code section 602 alleged that appellant and three other minors committed robbery (Pen. Code, 211). At a contested jurisdictional hearing, the court sustained the charge against appellant and dismissed the petition against his three codefendants. Appellant contends the juvenile courts finding against him is not supported by substantial evidence. We disagree, and affirm the judgment.

I. BACKGROUND

A. Prosecution Case

On August 9, 2008, about 3:50 p.m., Francisco Jaurez was waiting for a bus at the corner of Foothill Boulevard and 73rd Street in Oakland. Before the bus arrived, five young Black men walked up and surrounded Juarez. The bus arrived, but Juarez was prevented from boarding it by the men surrounding him. After the bus left, the man standing behind Juarez, who was the tallest and oldest of the group, grabbed Juarez and started choking him. The man threatened Juarez in broken Spanish, [I]f you moveif you screamif you dont give us money Ill kill you. Juarez was very frightened.

Juarez could not see the face of the man choking him. But it was daylight and Juarez could see the other mens faces clearly. He looked at their faces for about five minutes. I looked at them when they came up to me, and I still have them in my eyes. Juarez testified that he did not notice what the men were wearing due to his fear.

One of the men grabbed him on the stomach, another one had him by the neck, and two took his cell phone and $250 in cash from his pockets. Juarez was carrying his wages in cash that day because he did not have a bank account. Juarez twice identified appellant as the man who took his money. Appellant stood out from the others in Juarezs mind because he had long hair. Juarez testified that the one that I saw well that came up close to me was the one with long hair. He also testified that he recognized appellants face and that seeing his face made him afraid. He stated that appellants face was bad-looking to him because of when I see it from when they robbed me. When asked to make an in-court identification of the first one that you recognize from being there at the bus stop on August 9th, Juarez identified appellant. It was stipulated that appellants hair on the day of the robbery was the same as it was when he was identified by Juarez in court.

In contrast, Juarez did not recognize which one of the defendants had taken his cell phone and he testified that seeing codefendant S.M. did not make him afraid.

The robbers fled westbound on Foothill. The robbery lasted about five minutes. Juarez ran across the street to the Oakland Police Department substation in the Eastmont Mall and reported the crime. Officers Ngo and Jacobs immediately drove Juarez around the area looking for the robbers. About 4:10 p.m., approximately 20 minutes after the robbery, Juarez pointed out four Black males walking eastbound on the 6300 block of Foothill, and identified them as the men who had just robbed him. The officers did not first point out the men to Juarez. Juarez spotted the men and said, Thats them. Juarez saw other pedestrians walking on Foothill before he saw the men who robbed him. He recognized the robbers by their faces.

Juarez testified at one point that he did not tell the Spanish-speaking officer who took his statement about any of the robbers having long hair, but testified later that he did mention the hair when a police officer asked him about it. A written statement was prepared in English by a Spanish-speaking officer who spoke to Juarez as he sat in the back of the police car. That statement, which the officer read back to Juarez in Spanish before Juarez signed it, made no mention of one of the robbers having long hair.

B. Defense Case

Appellants case management officer, Kentrell Killens, testified that appellant failed to appear for a scheduled appointment on the afternoon of the incident. About 3:15 or 3:20 p.m. that day, appellant sent Killens a text message stating that he leaving from his home (on 63rd Avenue) to catch a bus and was on his way to meet Killens at the East Bay Asian Youth Center at 20th Avenue and East 12th Street. Killens said it was not unusual for appellant to text him. Appellant never came to the meeting.

Killens saw Juarez standing in the hallway within three to five feet of M.G., one of the codefendants, just before the first day of the jurisdictional hearing. Juarez stood there for three to five minutes and did not appear to recognize or be afraid of M.G. M.G.s mother testified to the same effect.

At the request of appellants counsel, the court accepted the parties stipulations that (1) at 4:10 p.m. on August 9, Juarez pointed out four suspects walking eastbound on the 6300 block of Foothill Boulevard; (2) Juarezs cash and cell phone were not recovered when the four suspects were detained and searched by police. At the defenses request, the court also took judicial notice that it is approximately 0.7 miles from the bus stop at 73rd Street and Foothill Boulevard, where the robbery occurred, to the 6300 block of Foothill, where the suspects were spotted after the robbery.

C. Juvenile Courts Ruling

The court found true beyond a reasonable doubt that appellant was one of the men who robbed Juarez, but held that the evidence was insufficient to support true findings with respect to the robbery charges against appellants three codefendants. The court explained its true finding regarding appellant in relevant part as follows: I find that Mr. Juarez, despite some language difficulties, given that Spanish is not his native language, was a very credible witness.^[[1]] He was very consistent in his testimony that all four minors before the court were the ones who robbed him. [] Although I have said my instincts tell me he is probably correct, I believe that the law . . . requires me to examine the basis for his identification of each minor to determine whether . . . I can truly say I have an abiding conviction of the truth of the charges . . . against each of the minors. [] . . . [] Counsel argued that Mr. Juarez . . . is biased because when he made his in-court identification he stated that he was afraid when he looked at [appellant and M.G.] in particular. [] . . . Counsel argued . . . the court should infer Mr. Juarez was afraid only because of the skin color of the minors, which happens to be black, and therefore he is biased. [] From my vantage point, however, what I inferred from Mr. Jaurezs testimony is just what he said, when looking at [appellant] in court he recognized [appellant] as one of the robbers. He recognized him because when he looked at him . . . he was scared. He stated he was scared because when he saw the face of [appellant] in court, he was reminded of seeing [appellant] during the robbery. . . . [] . . . [] With regard to [appellant], Mr. Juarez testified that his hair was long in court and also long at the time of the robbery. In fact, that was one of the distinctive features that he was able to provide in terms of a description. [] He testified on cross-examination . . . that the one minor he saw well, who came up close to him, had long hair. He identified that person in court as [appellant]. He testified that [appellant] put his hand in Mr. Juarezs pocket, the one that contained his wallet and money, and that [appellant] took his wallet and money from his pocket. [] Although I find that when he spoke to the police, . . . Mr. Juarez . . . gave a generic description that the people who robbed him were all black males and one of them was tall and older[,] . . . [] I also find that Mr. Juarez never wavered that [appellant] was one of the robbers, and that [appellant] has long hair. [] Although he testified that he did tell the officers . . . that one of the young black males had long hair, . . . that detail was not in his written statement as written by . . . Officer Neves. [] However, the court does not find the lack of detail in the written statement as being dispositive, given the issue that . . . Spanish [is not] . . . Mr. Juarezs first language. [] . . . I also do not find the testimony of Mr. Killens regarding [appellants] text messaging him . . . that he was on his way to meet Mr. Killens to be dispositive in any way or to negate [appellants] involvement in the robbery. [] . . . [] . . . [O]f all the minors . . . , the one minor that [Mr. Juarez] was able to provide the most detail about was [appellant]. He was able to articulate that [appellant] had long hair on the day of the robbery, and here in court. [] Mr. Juarez was able to articulate that [appellant] went into his pocket and took his wallet and money. . . . [] I do find thatbased on the totality of the evidence that was presented, that [appellant] robbed Mr. Juarez on the day in question. [] . . . The court considered that there seems to be an appearance of unfairness because I think that others were involved, who are seated before me, but I am only able to find that [appellant] at this time was involved, and that I find that beyond a reasonable doubt.

In addition to Juarezs testimony, the court also pointed to the fact that it was unlikely to be a coincidence that Juarez reported being robbed by a group of five young men who took off westbound on Foothill Boulevard and that the four codefendant minors were spotted by Juarez a few minutes later walking together on Foothill Boulevard several blocks west of the robbery site, and were pointed out by him as the young men who had just robbed him.  The court noted that the fact no money was found on the codefendants was not dispositive because the minors could have gotten rid of the cash when they saw the police coming.

The court also explained at some length its reasons for finding reasonable doubt as to the participation of codefendants R.P., S.M., and M.G. As to R.P., the court stated that Juarez was unable to articulate details that identified him, testified at one point that he could not recognize him, and was not sure if R.P. was or was not the person who spoke to him in broken Spanish. Regarding S.M., the court found that Juarez was unable to articulate any characteristics or traits that led him to believe R.M. robbed him and provided no testimony that corroborated or supported a description of R.M. given at the scene. Although Juarez referred to R.M. as the little guy, it was not clear whether he was speaking about his memory of the robbery or how R.M. looked to him in the courtroom in comparison to the other defendants. Regarding M.G., Juarez did testify that he recognized his eyes but he was not able to articulate what about M.G.s eyes caught his attention. In the courts view, Juarezs testimony about M.G.s eyes was no more persuasive than his testimony about S.M. being the little guy was in tying these defendants to the robbery.

The court adjudged appellant a ward, found the maximum potential term of commitment was five years eight months, and recommended that he be committed to Camp Sweeney for three months, with a progress report to be made thereafter.

Appellant timely appealed.

II. DISCUSSION

Appellant contends there was insufficient evidence to sustain the petition. According to appellant, Juarezs eyewitness identification was suspect, confusing, and inconsistent, and the court itself was inconsistent in finding Juarezs testimony sufficient to inculpate appellant in the robbery, but insufficient to inculpate the other defendants.

A juveniles challenge to the sufficiency of the evidence in support of a jurisdictional finding is subject to the same standard of review that applies to sufficiency of the evidence challenges in adult criminal casesthe substantial evidence rule. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Under that rule, we review the whole record in the light most favorable to the judgment below 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We resolve neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, [the] testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)

Appellant argues that Juarezs identification of him was inherently suspect because (1) there is extensive empirical evidence that eyewitness identifications are not reliable, (2) there are added pitfalls in making cross-racial identifications, and (3) studies show no correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification. For these points, appellant cites empirical studies referenced in the opinions of various courts. (See, e.g., United States v. Smith (9th Cir. 1977) 563 F.2d 1361, 1365 (conc. opn. of Hufstedler, J.) [unreliability of eyewitness testimony]; People v. McDonald (1984) 37 Cal.3d 351, 368, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914 [cross-racial identification].) However, the fact finder in this case was the juvenile court, not a lay jury. All of the pitfalls of eyewitness testimony were argued to the court, which we have every reason to assume would have been well aware of them in any event. Once the trial court determinedbased on its own observations of the witness, any corroborating circumstances, and its own informed understanding of the potential shortcomings of eyewitness testimonythat Juarezs testimony was sufficiently reliable to support a true finding, the substantial evidence corollary that the testimony of a single witness is sufficient to support a conviction must be applied, absent extraordinary circumstances. (Young, supra, 34 Cal.4th at p. 1181.) Appellant makes no claim that his involvement in the robbery was physically impossible or inherently improbable, and he cites no case abrogating the single witness rule due to the weaknesses of eyewitness testimony. We are therefore constrained to reject his argument that empirical evidence about the unreliability of eyewitness testimony provides a basis for overturning the juvenile courts decision in this case.

Appellant also cites a raft of factors specific to this case that he contends cast doubt on whether Juarezs testimony was reasonable, credible, and of solid value. (People v. Johnson, supra, 26 Cal.3d at p. 578.) According to appellant, Juarez (1) testified that he had trouble seeing the robbers while he was being choked, (2) was afraid and under stress during the event, (3) gave only a general description of appellant until his second day of testimony, (4) never picked appellant out of a lineup or group, (5) had a racial bias against Black people that influenced his identification of appellant, and (6) gave testimony that even the juvenile court found to be inconsistent and confusing on some issues.

We are not persuaded that these factors, either singly or in combination, so undermine the credibility of Juarezs testimony that no reasonable trier of fact could have relied upon it to find appellant guilty beyond a reasonable doubt. Juarez testified that he saw four of the five robbers clearly during the attack, including appellant who was standing to his left and who he singled out as the robber who reached into his pocket and took his wallet and cash. He looked at them when they came up to him and could see their faces for about five minutes in full daylight. He saw appellant well. Although Juarez acknowledged that he was afraid during the robbery and that he could not see the robbers at times when he was being choked, he consistently testified that he got a good look at all of the robbers, and remembered their faces. He particularly remembered appellant because of his long hair and bad-looking face.

Appellant claims that Juarez never picked him out of a group and did not offer a distinguishing description of him until the second day of trial. With regard to appellants first point, we find nothing in the record to indicate that he requested a lineup or other procedure to determine if Juarez could pick him out of a group. In any event, the identification procedure used in this case did not so taint Juarezs in-court identification of appellant as to render it unreliable as a matter of law. (See In re Carlos M. (1990) 220 Cal.App.3d 372, 386387.) As for the second point, we note that the first day of trial in this case lasted only two hours. At the outset of his testimony, Juarez picked out appellant as the first person he recognized from the robbery. Further, he was not cross-examined about his identifications until the second day of trial, and he did not have a translator who could communicate with him in his native language until the third day of trial. There is no reason to ascribe any particular significance to Juarezs asserted lack of specificity on the first day of trial.

Appellants trial counsel cross-examined Juarez about possible racial bias, and presented extensive argument on that subject to the trial court. The court specifically rejected the claim that Juarez displayed or demonstrated racial bias in his testimony or demeanor on the stand. The court specifically rejected the argument that bias should be inferred from Juarezs lack of everyday contact with Blacks or from his testimony that he was afraid of the codefendants or his admission that he was afraid of other Black men who congregate near his neighborhood store. The court found that Juarezs fear of the codefendants stemmed from the robbery, not from bias, and that racial bias was not the cause of Juarezs fear about the men who gather outside his neighborhood store. We have no reason to second-guess the trial courts considered opinion that the witnesss identification of appellant was not the product of racial bias. That court was in best position to view the witnesss demeanor on the stand and assess his attitude toward the codefendants. The court noted that Juarezs demeanor on the stand was calm and even at all times, even when he discussed his fears of the codefendants and when he was being cross-examined. We find nothing in the record that contradicts or undermines the trial courts conclusion that Juarez did not display racial bias.

We are satisfied, as was the trial court, that any confusion or apparent inconsistencies in Juarezs testimony were attributable to translation difficulties caused by the lack of a Mam translator until the third day of trial. It is clear from the record that the witness did not understand some of the questions posed to him on the first days of trial and that on a few points he made seemingly contradictory statements. For example, he made contradictory statements on day two about whether he told police one of the robbers had long hair, and contradictory statements on days one and three about whether he spotted the defendants walking along Foothill before or after the police pointed them out to him.[2] Nonetheless, Juarez was not confused or inconsistent as to how the robbery occurred or about the minors involvement in it. The trial court found that he remained consistent in his testimony on those points, even under cross-examination by four defense attorneys, and never waivered that appellant was one of the robbers and had long hair. We find no basis in the record for concluding that Juarezs testimony was so confusing and contradictory that it must be considered unreliable as a matter of law.

Finally, we find no contradiction in the juvenile courts finding that Juarezs testimony was sufficient to support a true finding for appellant, but not for his codefendants. The court was duty-bound to evaluate the strength of the evidence against each defendant separately. The courts recitation of the grounds for its findings is admirably thorough and demonstrates that the court carefully parsed Juarezs testimony, and drew distinctions between the testimony inculpating appellant and that inculpating the other defendants that were well-reasoned and well-grounded in the evidence. In brief, Juarezs testimony regarding appellant was more detailed, more consistent, and more convincing than that regarding his codefendants, and the court was therefore entitled to regard it as meeting a higher threshold of proof.

The juvenile courts true finding as to appellant was supported by substantial evidence.

III. DISPOSITION

The judgment is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Dondero, J.

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[1] It was pointed out by Juarezs Spanish language interpreter on the first day of trial that Juarezs native language was Mam rather than Spanish, and that difficulties in comprehension and translation were likely to occur. It was not until the third day of trial that the court was able to obtain the services of an interpreter who could communicate with Juarez in his native language. In its ruling, the court commented that once a Mam translator was provided, Juarez was able to communicate freely and his testimony reflected a changed demeanor and degree of confidence. The court further stated that Juarez was at that point able to clear up . . . areas of his testimony where he may have previously misunderstood the questions.

[2] On the latter point, we note the parties stipulation that [a]t 4:10 on . . . August the 9th, the complaining witness pointed out four suspects walking eastbound on the north curb of the 6300 block of Foothill Boulevard.