In re V.D.

Filed 8/31/09 In re V.D. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Benjamin R. Campos, Commissioner. Affirmed.

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

The minor V.D. appeals from the juvenile courts order continuing wardship after finding he committed second degree robbery against E.R. The minor was ordered into the camp community placement program. He contends the finding must be reversed for insufficient evidence of his identity as one of the robbers. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1.Factual Background

On the evening of February 9, 2008, S.A. and E.R. were walking by a restaurant when they were robbed by a group of young men. One of them approached S.A. and pulled off her necklace before joining the others in punching E.R., who surrendered one of his necklaces. Another young man snatched E.R.s remaining necklace. S.A. and E.R. fled, and the young men turned back towards the restaurant. Deputy sheriffs arrived and arrested four young men, including the minor.

2. Procedural Background

The People filed a Welfare and Institutions Code section 602 petition alleging two counts of second degree robbery (count 1, the robbery of S.A.; count 2, the robbery of E.R.) against the minor and each of the three other young men. The four of them were adjudicated jointly.[1]

After the People completed their presentation of evidence, the juvenile court granted the defense motion to dismiss count 1 (Welf. & Inst. Code, 701.1) for insufficient identification evidence as to which, if any, of the four young men committed the robbery of S.A.[2]

At the conclusion of the jurisdiction hearing, the juvenile court heard arguments by counsel. All parties acknowledged the only issue was whether the People had satisfied their burden of proving it was these four young men who had robbed E.R. The court noted the People would not have met their burden had they relied on the victims testimony alone. However, corroborating circumstantial evidence of the arresting deputy sheriffs testimony established these four young men had committed the robbery of E.R. as alleged in count 2.[3] Specifically, the court found the deputys testimony of arriving within minutes of the robbery to see the four young men at the scene and engaged in conduct indicating consciousness of guilt supported the robbery finding.

3. Evidence of the Robbery of E.R.

a. Summary of the Peoples evidence

Within two minutes of the robbery report, Deputy Sergio Jimenez of Los Angeles County Sheriffs Department and his partner arrived to see four young men, among them the minor, running towards the restaurant. The young men looked at the patrol car, increased their speed, and ran into the restaurant. The minor and two other young men immediately sat down at a table, while the fourth young man dropped something into a trash can. Jimenez detained all four young men and had them sit in a patrol car about 30 feet from the restaurant entrance. Jimenez searched the trash can where the fourth young man had dropped something and found a silver necklace that E.R. identified as belonging to him.

S.A. and E.R. approached deputy Jimenez in front of the restaurant and told him the four young men sitting in the patrol car had just robbed them and had assaulted E.R. Jimenez decided to conduct a field show-up.

The Field Show Up

Deputy Jimenez seated S.A. and E.R. in his patrol car and advised them the individuals being detained might or might not have been the perpetrators. E.R. and S.A. said they understood. Jimenez drove them to where the young men were being detained. As each young man emerged from the patrol car, Jimenez first asked S.A. and then E.R. whether the young man had been involved in the robberies. S.A. and E.R. separately identified all four young men, including the minor.

Identification Testimony

E.R. testified he was able to identify the four young men to Deputy Jimenez during the field show-up because he had seen their faces while they were assaulting him. He also testified he was certain of his identification at the time. In court, E.R. was unable to identify the minor or any of the other three young men as having participated in the robberies.

b. Summary of Defense evidence

The minor testified in his own defense that he went to the restaurant with his mother on the evening of February 9, 2008. He saw about 20 friends outside the restaurant and walked over to them. The minor was talking with approximately 10 friends when patrol cars suddenly drove up. The minor and his friends walked real fast into the restaurant and sat down. Deputies entered the restaurant and detained him and some of his friends. The minor denied robbing E.R. that night.

The minors mother testified and corroborated her sons testimony. She added that a deputy told her the minor was being arrested because he was a robbery suspect. That night the minor was wearing a blue T-shirt and blue shorts. The minors mother did not see him rob anyone. She admitted having previously been convicted of felony child abuse and petty theft.

R.C., one of the young men arrested with the minor, testified in his own defense to entering the restaurant that evening and seeing the minor and another young man, E.D., waiting for their food to be served. R.C. ordered his food and sat down with them. Deputies arrived, detained R.C., E.D. and the minor and placed them all in a patrol car. R.C. did not take anyones necklace or assault anyone.

DISCUSSION

The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In reJose R. (1982) 137 Cal.App.3d 269, 275.) In either case we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v.Bolin, supra, 18 Cal.4th at p. 331.)

The identity of the perpetrator of a crime is a question of fact for the trier of fact. (See People v. Rich (1960) 177 Cal.App.2d 617, 625.) [A] testifying witnesss out-of-court identification is probative [for the purpose of establishing the defendants identity as the perpetrator of a crime] and can, by itself, be sufficient evidence of the defendants guilt even if the witness does not confirm it in court. (People v. Boyer (2006) 38 Cal.4th 412, 480; see also People v. Cuevas (1995) 12 Cal.4th 252, 271-272.)

In this case, the defense introduced evidence disputing the minors identity as one of the robbers, vigorously explored the circumstances of the out-of-court identifications and elicited testimony during cross-examination to disprove the minors identity as one of the robbers. In closing argument, defense counsel argued at length the credibility and reliability of the victims testimony and discrepancies in the Peoples evidence. However, the juvenile court found the out-of-court identification of the minor was credible, as corroborated by Deputy Jimenezs testimony of the minors presence with the other young men at the scene shortly after the robbery and their shared evasive behavior in response to the arrival of law enforcement. E.R.s testimony his field show-up identification was based on having seen the robbers faces, and Deputy Jimenezs testimony provided credible evidence from which a rational trier of fact could find the minor had participated in the robbery of E.R.

Without appearing to challenge the victims credibility, the minor argues their out-of-court identifications were tainted by suggestive police procedure, which rendered them unreliable, because it predisposed the victims to identifying him as one of the robbers. Specifically, the minor maintains the field show-up was unduly suggestive because by the time it occurred, the victims had already seen the minor seated in the patrol car and had identified him to Deputy Jimenez. The minor posits because he had been detained with the other young men, the victims were induced to identify him as one of the robbers and, having volunteered their identifications to Jimenez, were not inclined to change their minds. Additionally, the minor maintains because the victims were together when they made their identifications, they undoubtedly influenced each other.

It is true that after seeing the four young men inside the patrol car, the victims were prompted to identify them to Deputy Jimenez. It may also be true, although without support in the record, the victims were disinclined to change their minds during the field show-up. However, such behavior by the victims was not the result of an impermissibly suggestive procedure, which caused defendant to stand out from the others in a way that would suggest the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367; People v. Yeoman (2003) 31 Cal.4th 93, 124.)

Nothing in the record indicates Deputy Jimenez did anything to single out the minor or the other young men during the field show-up or to direct the victims to identify them as the perpetrators. Indeed, rather than rely on the victims volunteered identifications, Jimenez decided to conduct a field show-up, shortly after the robberies. In doing so, Jimenez properly admonished the victims the young men detained might not be the robbers, which both victims confirmed they understood. Jimenez then had the young men viewed individually by the victims, who separately identified each one as having been involved in the robberies. The victims also told Jimenez they were certain of their identifications at the time. Neither victim testified their identifications were somehow suggested by Jimenez. As for the minors claim the victims influenced each others identifications because they were together in the patrol car, there is no evidence the two of them conversed during the field show-up or engaged in any conduct affecting each others identification.

In any event , the minors arguments on appeal amount to a request that we reweigh the credibility of the witnesses testimony in this case and resolve conflicts in the evidence; neither of which we can do. (People v. Young (2005) 34 Cal.4th 1149, 1181 [In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.].)

DISPOSITION

The order is affirmed.

ZELON, J.

We concur:

WOODS, Acting P. J.

JACKSON, J.

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[1] The other young men were E.D., K.C., and S.R.

[2] At the jurisdiction hearing, S.A. identified the minor and the three other young men in court as the same young men she had previously identified in a field show-up after the robberies. On cross-examination, S.A. testified she could not recall whether the minor and the other three young men were present during the robberies and assault of E.R. S.A. also acknowledged she had not seen the face of the young man who pulled off her necklace or the faces of the young men who had assaulted E.R. E.R. testified he could not remember the young man who took S.A.s necklace.

[3] The other young men are not parties to this appeal.