Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 511995. Nan Cohan Jacobs, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On January 27, 2010, the Stanislaus County District Attorney filed a juvenile wardship petition in superior court alleging 16-year-old appellant Joseph R. (appellant) committed robbery (Pen. Code, § 211) with use of a knife (Pen. Code, § 12022, subd. (b)).
On April 27, 2010, the superior court conducted a contested jurisdictional hearing and found the allegations to be true.
On May 11, 2010, the superior court conducted a dispositional hearing, declared appellant a ward of the court, and ordered him to serve 90 days in juvenile hall with 72 days of credit for time served. The court imposed standard terms of probation with respect to drug and alcohol use and gang affiliation.
The court imposed a $100 restitution fund fine (Welf. & Inst. Code, § 730.6) and a $100 probation supervision fee (Welf. & Inst. Code, §§ 903, 903.1, 903.2).
On May 17, 2010, appellant filed a timely notice of appeal from the jurisdictional findings.
On September 22, 2010, this court granted appellant’s motion to construe the notice of appeal to include the dispositional order of May 11, 2010.
STATEMENT OF FACTS
At 2:00 p.m. on January 19, 2010, 15-year-old Timothy B. (Timothy) finished his day at school in Modesto and walked across the street to an alley behind AJ’s Market. At 2:15 p.m. he greeted his friend, Tyler R. (Tyler), near the “front of the alley.” Timothy shook hands with Tyler and the latter departed for home. Timothy then used his cell phone to call his mother and text a friend. Two men approached Timothy, came within four feet of him, and one of them demanded Timothy’s cell phone. The man said he would stab Timothy if he did not comply. The man lifted up his shirt and revealed a knife. Timothy gave the man the phone and the pair ran down the street.
Modesto Police Officer Mario Gonzales interviewed Timothy, and the latter said the person with the knife was a Hispanic male around age 20 wearing a red baseball cap and white Raiders jersey. He said the man stood five feet nine inches tall and weighed 180 pounds. He also said the man had a tattoo on his left forearm depicting praying hands with Old English lettering circling the graphic. Timothy said the other man was “chubbier, ” stood about five feet ten inches tall, and wore a white T-shirt and a white baseball cap. Timothy said there was a third man down the street at the time of the incident, but he was not involved in the crime. That man was dressed in a white T-shirt and a baseball cap. Timothy gave the same description of the tattoo to Modesto Police Officer Eric Pena.
On January 20, 2009, the principal of Timothy’s high school released a letter about the incident and included a description of the perpetrator as provided by Timothy. Tyler received a copy of the letter, discussed the incident with Timothy, and said, “Oh, I might know that guy.” Timothy gave a description of the suspect, and Tyler confirmed that he knew the person.
Tyler testified he said goodbye to Timothy on the day of the incident, walked down the street, and headed for home. As Tyler did so, he saw three people walking toward the market where he had seen Timothy. One member of the trio was wearing a black Raiders jacket, had closely-cut, shaved black hair, and stood about five feet nine inches tall. Tyler said he was “kind of blurry” on the other two. When asked if he saw any distinctive features such as facial hair or a tattoo, Tyler did not mention a tattoo. Tyler said the person had shaved black hair, fairly close cut, and possibly a moustache.
Tyler also said the person was a minor. He thought the person’s name was Joseph, but he did not know Joseph’s last name. Tyler said the person’s girlfriend is a student in Tyler’s second-period class, and Tyler had seen Joseph and his classmate together at the market a month or two earlier. Tyler gave Joseph’s name to law enforcement officers.
Officer Pena contacted the appellant’s school and asked the administration to print photographs of students named Joseph or Jacob. Two days after the incident, officers showed a photographic lineup to Timothy and he immediately identified the photograph of appellant. Several days later, an officer transported Timothy to a liquor store where minor was located. Timothy identified appellant from a distance of 25 feet.
At the jurisdictional hearing, Timothy changed the story about the tattoo. He said the perpetrator had a stencil on his left forearm. That stencil depicted praying hands. Timothy also said the perpetrator had “longer hair, ” a ponytail, a goatee, a moustache, and a beard. Despite these changes to his story, Timothy identified appellant in open court.
Recalled as a witness for the People, Officer Pena testified he spoke with Frank O., a friend of appellant, and Frank’s mother about two days after the incident because a call had been made to her from Timothy’s cell phone. They identified appellant from a photo lineup, and Frank confirmed that appellant owned a red “SF” hat. Pena asked whether there was any significance to the hat. Frank laughed and said it means, “f*** scraps.”
Officer Pena explained the first step in getting a tattoo is to get a stencil of the tattoo. He said such stencils can be created with tattoo paper, an ink pen or “Sharpie” pen, or any device which can place the stencil on the skin.
Defense Evidence
Officer Gonzales said he interviewed Timothy after the incident. Timothy indicated that three Hispanic males around 20 years of age approached him. Timothy said the main perpetrator was five feet nine inches tall and weighed 180 pounds. The man was wearing a red baseball cap and a white Raiders jersey bearing the number 18 in black lettering. The other two men were wearing white baseball caps. Timothy told Gonzales the suspect in the Raiders jersey “possibly had praying hands of a tattoo on his left forearm.” Timothy said there was Old English lettering under the tattoo design.
Officer Pena interviewed Timothy on the day after the incident and Timothy again described the suspects. Timothy described a tattoo on the left forearm of the man in the Raiders jersey or jacket. He said the tattoo depicted praying hands and Old English lettering. Timothy also informed Officer Pena that a student at a local high school, possibly named Joseph, might be a suspect. Pena contacted the school and obtained photographs of all students with the name Joseph or Jacob. Officer Pena showed the photographs to Timothy, and Timothy immediately identified minor. Timothy also identified minor at a show-up.
In reviewing calls made on Timothy’s cell phone after the incident, police found a call had been made to a phone belonging to Frank O.’s mother. When police questioned Frank about this incident, he claimed he had not been with appellant at the time of the incident. Rather he had been at Garrison Park. Frank told officers that appellant had plans on the day of the incident to get a tattoo on his left arm depicting praying hands with Old English lettering. However during the jurisdiction hearing, Frank denied making statements to police about appellant’s plans for a tattoo. Frank also denied telling Officer Pena that appellant had a red hat bearing the letters “SF.”
Appellant’s brother testified he knew Frank and a person named Ivan M. Appellant’s brother said Ivan has a tattoo on one of his arms and that tattoo depicts praying arms and a cross. He said on most school days his father picks him up after school, and together they go pick up appellant at Sutter Park. Appellant’s brother further testified appellant was at his normal pick-up spot in the week preceding his arrest.
Appellant’s father testified he routinely picked up his sons after school. Father said appellant’s behavior was normal when he picked him up during the week before his arrest. Father does not allow appellant to wear baseball caps because they are not allowed at his school.
Appellant testified on his own behalf. He stated that school let out at 12:35 p.m. on the day of the incident. He went to Sunrise Market and then to a nearby park. He said he talked with friends at both places, “just kicking back.” He went to Frank’s house, and he and Frank walked and talked for awhile. After Frank left him, appellant walked by himself until his father picked him up.
Appellant denied having a stencil or tattoo. He said he stands about five feet eleven inches tall and weighs about 150 pounds. He denied owning a red cap bearing the initials “SF.”
Findings of the Juvenile Court
The juvenile court found on April 27, 2010:
“One thing in my notes kind of jumped out at me [as I was] going back [and] reading them and that was in the victim’s testimony. And it ties in with Officer Pena’s testimony about the procedure on getting tattoos.
“At the time it didn’t mean anything to me, but the choice of the word was significant. What I wrote down in my notes was that the person who threatened Timothy with a knife had a stencil on his arm is what I wrote; not a tattoo. I wrote the word ‘stencil.’
“And I think that was an interesting choice of words given the testimony. And when I put all of the witnesses’ testimony together, a lot of times what happened is like putting the pieces of a puzzle together. If you look at them in isolation, it doesn’t make sense. But when you put them all together in one place and start plugging them in, you get the big picture. And I think that’s the big picture.
“It’s consistent with Officer Pena’s testimony about his interview with Frank [O.] where Frank told the officer that he and … Joseph, were planning on getting tattoos later in the day. And that the tattoos were of praying hands with old English lettering. And that’s precisely what Timothy described.
“I found Frank’s testimony here in court not to be credible. He was very evasive. At one point he said, ‘I’m not going to answer those questions.’ And his body language was also very evasive. He was looking down and did not show that appearance of confidence in the veracity of what he was saying, and he clearly was here under duress. But I did not believe his testimony in any way whatsoever. And I believe the statements that he made to the officer at the time of the initial interview were more truthful.
“It’s also interesting that there was the phonecall … on the stolen cell phone – from the stolen cell phone to the home of Frank [O.]. That’s all – it’s all consistent.
“So when I put all of the pieces of the puzzle together, I find that the district attorney has met its burden of proof, and that I find the allegations true that Joseph [R.] committed a robbery in violation of Penal Code Section 211.
“I also find the enhancement to be true. Timothy testified that Joseph pulled up his shirt and showed him a knife. [¶] … [¶]
“I will find the enhancement to be true in this incident. I find that the minor used the knife as a means of force to strike fear into the mind of the victim and to force him to concede to his demands.
“I find that, although, the victim was not stabbed, the knife was used to threaten and coerce the victim to do what the minor was demanding that he do.”
DISCUSSION
I. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE IDENTIFICATION OF APPELLANT AS THE PERSON WHO COMMITTED THE ROBBERY
Appellant contends the prosecution failed to meet its burden of proving beyond a reasonable doubt that he was the perpetrator of the charged offense. He notes the victim, Timothy, told officers the perpetrator had a distinctive tattoo of praying hands and Old English lettering on his forearm. At the jurisdictional hearing, Timothy modified his story to say the perpetrator had a stencil rather than a tattoo. Appellant contends he has neither a tattoo nor a stencil, and inconsistencies and discrepancies in the testimony of witnesses established reasonable doubt.
A. Governing Law
When an appeal challenges the sufficiency of the evidence to support a juvenile court judgment sustaining the allegations of a Welfare and Institutions Code section 602 petition, we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. “Under this standard, the critical inquiry is ‘whether, after reviewing 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.’ [Citation.] An appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] In reviewing the evidence adduced at trial, our perspective must favor the judgment. [Citations.] ‘ … The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]’ ” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.)
Thus, in an appeal from a juvenile criminal judgment, as in any other criminal appeal, we are in no position to weigh any conflicts or disputes in the evidence. The juvenile trial court is the trier of fact and the sole judge of the credibility of witnesses; we are not. Even if different inferences can reasonably be drawn from the evidence, we cannot substitute our own inferences or deductions for those of the juvenile court. We must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the juvenile court’s decision, and resolving conflicts in support of the juvenile court’s decision. In short, in juvenile cases, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.)
B. Appellant’s Contention
Appellant essentially contends “there was no substantial evidence supporting his identity as the perpetrator, due to the disparities in the testimony of Timothy and Tyler. The evidence supporting true findings is far from overwhelming. The cell phone was not found in his possession, and there was no strong corroborating evidence to give the eyewitness identification independent reliability.”
Appellant points out Timothy and Tyler “described completely different hair styles and different types and colors of clothing” when describing the perpetrator. For example, Timothy mentioned the perpetrator’s goatee for the first time at the jurisdictional hearing. Tyler did not mention a goatee at all. Prior to the hearing, Timothy said the perpetrator had a tattoo; at the hearing Timothy said the perpetrator had a stencil. Both Timothy and Tyler said the perpetrator stood about five feet nine inches tall, while minor’s booking sheet indicated he was five feet eleven inches tall. Appellant also notes that Timothy and Tyler spoke with each other after the incident and suggests “each identification inevitably reinforced the other.”
C. Analysis
“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) In this case, the victim, Timothy, identified appellant as the perpetrator in a photographic lineup, at an in-person show-up at a liquor store, and at the jurisdictional hearing. Timothy’s friend, Tyler, said appellant was the boyfriend of one of his school classmates and confirmed appellant was the individual wearing the Raiders clothing at the time of the incident.
Officer Pena confirmed that Timothy positively identified appellant at the lineup and the show-up. Officer Pena also testified the phone number of the mother of Frank O., appellant’s friend, was recovered from Timothy’s stolen cell phone. Pena interviewed Frank O. and his mother, they identified appellant’s picture from a photo lineup, and Mrs. O said she did not like appellant “because he was a negative influence to her son.”
An appellate court may not substitute its judgment for that of the trier of fact. (People v. Sanchez (1998) 62 Cal.App.4th 460, 468.) The jurisdictional findings are supported by substantial evidence.
Appellant contends this court recently held or observed: “ ‘A goatee is considered [a] distinctive cue which is any feature of the person observed that is unique, unusual, abnormal, or odd and distinguishes the person observed from similar others. As the scientific studies have shown, distinctive cues are the most accurate part of the perception of others.’ ” (People v. Soojian (2010) 190 Cal.App.4th 491, 510.) In Soojian, the defendant was convicted of crimes arising from the armed robbery of a mother and son. The trial court denied defendant’s multiple motions for new trial and this court reversed on the basis of newly discovered evidence. The quotation about the goatee was not derived from California case authority but from the declaration of a neurophysiologist filed in support of defendant’s second new trial motion.
II. APPELLANT’S COUNSEL WAS NOT INEFFECTIVE BY FAILING TO CROSS-EXAMINE VARIOUS WITNESSES AND OBJECT TO CERTAIN TESTIMONY
Appellant contends his counsel was ineffective by failing to (1) cross-examine witnesses after Timothy claimed the perpetrator had a stencil on his arm rather than a tattoo; (2) object to questionable identification procedures, including the photographic lineup and in-field show-up; and (3) object to Officer Pena’s testimony about tattoos and stencils.
A. Governing Law
The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “ ‘ample opportunity to meet the case of the prosecution.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687- 688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at p. 694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
The failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “ ‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
B. Analysis
1. Failure to Cross-Examine Timothy About the Stencil
Appellant contends:
“Here … the testimony of the eyewitness was central to the case, which was otherwise weak. Had the minor’s counsel questioned the inconsistent statements of Timothy regarding the stencil versus the tattoo, his identification of the minor would have been discredited. Instead, the minor’s counsel overlooked Timothy’s switch in description from ‘tattoo’ to ‘stencil.’ The failure to cross-examine permitted the court to conclude that the tattoo was in fact a stencil, thereby explaining the contradiction that the minor, who had no tattoos, could not possibly have been correctly identified as the responsible party.”
Where the record on appeal sheds no light on the purpose behind counsel’s acts or omissions, the question of ineffective assistance is more appropriately resolved by a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) The record on appeal does not reveal a reason for counsel’s failure or omission to cross-examine Timothy on the distinction between a “tattoo” and a “stencil.” Here, defense counsel could have reasonably concluded that an inquiry into this distinction would have only strengthened the prosecution’s position. In other words, cross-examination on this point would have given Timothy additional opportunities to emphasize the certainty of his identification of minor as the perpetrator of the offense as well as the opportunity to explain away or clarify his initial choice of the word “tattoo” rather than “stencil.”
2. Failure to Object to Officer Pena’s Testimony About the Distinction Between a Tattoo and a Stencil
Appellant contends Officer Pena was not qualified to offer expert testimony in this case:
“… He had absolutely no personal knowledge of whether the minor had either a stencil or a tattoo. Yet he was permitted to offer de facto expert testimony on how tattoos and stencils are acquired. Defense counsel did not object when the officer effectively educated the court about the process preparatory to getting a tattoo, nor did he cross-examine him. The court relied on Officer Pena’s testimony in concluding that the minor had a stencil. [¶] The minor’s counsel’s failure to address the issue of Officer Pena’s testimony can only be attributed to representation falling below professional standards of reasonableness. Any reasonably competent attorney would be aware of the necessity to object and, if unsuccessful, to at least cross-examine the witness.”
Officer Pena’s testimony about tattoos occurred on redirect examination during the defense case:
“MR. PHIPPS [deputy district attorney]: Q. Do you know anything about tattoos and how they’re acquired?
“A [By Officer Pena] The only thing I know about tattoos and how they’re acquired is you are supposed to go to a licensed tattoo shop and get it done by a tattoo artist. Or, occasionally, some people will get a street tattoo or create a tattoo by themselves by doing it by other means.
“Q Do you know what the first step is before the tattoo is done.
“A Usually, the first step in obtaining a tattoo is obtain a stencil of some sort. That can be created by different types of tattoo paper – ink pen, Sharpies, or anything that can place a stencil of a tattoo on your arm.
“Q And that’s filled in after that?
“A That is correct, sir.”
Here, Officer Pena offered only one brief response regarding the distinction between a stencil and a tattoo. Appellant’s counsel may have reasonably concluded that Pena’s modest response did not merit further examination and that greater specificity could have been harmful to the defense. In the alternative, appellant’s counsel may have reasonably concluded that interposition of an objection on the grounds of Pena’s alleged lack of qualifications would have simply caused the prosecutor to call a qualified expert who, in turn, would have offered testimony far more detailed and damaging to appellant’s position.
Appellant’s counsel did not render ineffective assistance by declining to cross-examine Officer Pena about the tattooing process.
3. Failure to Object to Identification Procedures
Appellant contends evidence linking him to the crime consists of questionable pretrial identification procedures conducted without the benefit of counsel:
“… First, Timothy identified the minor from a photo array of students at [a local high school] named Joseph or Jacob. The minor’s counsel did not question the validity of the photo array to determine the ethnic composition, or whether the photos revealed any tattoos or goatees on the students. Secondly, about a week later, Timothy was taken to a liquor store for an in-field show-up where he identified the minor from 20 to 25 feet away. The minor’s counsel asked no questions to determine the propriety of the identification; i.e., whether this was a single person show-up.
“Again, there can be no tactical reason for the minor’s counsel not to cross-examine on this critical issue. Aside from the identification, the prosecution presented no independent evidence establishing the minor robbed Timothy of his cell phone.”
A criminal defendant has the burden of establishing, based on the record on appeal and on the basis of facts, not speculation, that trial counsel rendered ineffective assistance. (People v. Mattson (1990) 50 Cal.3d 826, 876-877.) Moreover, we cannot assume that potentially helpful documentary evidence existed and was available to establish ineffective assistance. (People v. Wrest (1992) 3 Cal.4th 1088, 1116.) “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.) Failure to object to evidence or argument seldom establishes counsel’s incompetence. (People v. Medina (1995) 11 Cal.4th 694, 773-774.)
Appellant does not cite to any evidence in the record establishing an impropriety in the photographic lineup or the show-up at the liquor store. Instead, he simply asserts the pretrial identifications were impermissibly suggestive and claims that counsel was ineffective in failing to deal with those identifications. Appellant’s contention is based upon speculation and not facts and his claim of ineffective assistance must be rejected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Kane, J.