Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0701595
RIVERA, J.
Minor R.O. appeals from jurisdictional and dispositional orders of the juvenile court. He contends on appeal that an eyewitness’s identification of him was based on an impermissibly suggestive single-person showup, and that the gang conditions the juvenile court imposed were overbroad and vague. We shall order a probation condition modified, and otherwise affirm the orders.
I. BACKGROUND
A supplemental juvenile wardship petition pursuant to Welfare and Institutions Code section 602 was filed on August 18, 2009, alleging that Minor had committed attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), & 664), and that he had been armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
All undesignated statutory references are to the Welfare and Institutions Code.
A contested jurisdiction hearing took place. The evidence showed that Kenedy Ribeiro worked as a pizza delivery person. On August 17, 2009, shortly after midnight, he delivered food to a young man at a single family home on Brighton Street in Hercules. As he drove off, “a guy” came to the front of his car, waving his hands back and forth and forcing Ribeiro to stop. The person in front of the car was wearing dark clothing, and had a bandana across his face, covering his mouth and the bottom portion of his nose. Ribeiro could see the person’s eyes and hair. His face was lit by the lights of the car. In court, Ribeiro identified Minor as the person at the front of the car. Ribeiro looked in the rearview mirror and saw another “guy” behind the car. Fearing he was about to be assaulted, Ribeiro drove on. As he did so, he heard gunshots and the sound of the back windshield breaking.
Ribeiro testified in Portuguese through an interpreter. He testified that he also spoke Spanish well.
Ribeiro drove away, then stopped and called the pizzeria and asked someone there to call the police. Police officers arrived, and Ribeiro’s employer, Gilbert Muro, Jr., who spoke Spanish, arrived and translated as Ribeiro spoke with officers. Officer Greg Fernandez, who spoke with Ribeiro with Muro’s assistance, testified that Muro did not appear to have any difficulty in understanding English or interpreting, and the interpreted answers were responsive to Fernandez’s questions. Fernandez told Muro to translate verbatim from English to the language spoken by Ribeiro.
Ribeiro described the person at the front of the car as wearing a black bandana, a black T-shirt, and a black hat, and said he was a white male, about five feet ten inches, and 190 pounds. An officer later showed a black bandana to Ribeiro, and he identified it as the one the person was wearing. At the hearing, Fernandez estimated Minor’s height at between five feet eight inches and five feet ten inches, and said he appeared to be more than 135 pounds.
It appears that at the time of the incident, Fernandez described Minor as being five foot five inches in height, and weighing 130 pounds.
Minor was found at the Brighton Street house. He had been shot, and a black T-shirt was found in the house that had holes consistent with Minor’s bullet wounds. He told an officer he had been injured at a stop sign near a pool; there was a pool at a nearby intersection on Brighton. A black and white bandana was found on the sidewalk near the intersection. A police tracking dog followed a track from the area that the bandana was found to the Brighton Street house. A revolver was found on the roof of the Brighton Street house. Four rounds had been fired from the gun. Bullets were found in the toilet bowl of an upstairs bathroom.
Ribeiro was taken back to the house on Brighton. He was shown two people, one of whom he recognized as the person to whom he had delivered food, and the other of whom had clothing similar to that of the person who had been behind his car. Beforehand, Fernandez read Muro an in-field lineup admonishment from a department-issued card, which Muro translated for Ribeiro. The admonishment stated, “The fact that you’re going to be taken to view this person should not indicate whether or not this person is involved with this crime[.] [Y]ou’re not obligated to identify anybody.” It went on, “It’s just as important to free innocent persons from suspicion as it is to identify guilty ones.”
About four hours later, Fernandez took Ribeiro to a hospital. According to Ribeiro’s testimony, the officer took him to the hospital to see if someone there was the one who was in front of the car. According to Fernandez, “When I arrived on scene, I advised [Ribeiro] we were going to be doing another infield showup, ” and Ribeiro said through the interpreter that he understood. Fernandez did not recall whether he read the in-field lineup admonishment again. Ribeiro knew he was going to see someone who had been shot, and he had been told that the boy who had been in front of the car had been hit. Outside the hospital, he saw Minor with an officer. Minor was wearing a hospital gown. Ribeiro identified Minor with “[a] hundred percent” certainty as the person at the front of the car, and remained certain of his identification at the hearing.
The juvenile court found true both the allegation that Minor committed attempted second degree robbery and the firearm enhancement.
II. DISCUSSION
A. Unduly Suggestive Identification
Minor contends Ribeiro’s identification of him should have been suppressed because it was the result of an unduly suggestive procedure.
“It is well established that convictions based on eyewitness identification at trial, after a pretrial identification, constitute a denial of due process only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citations.] A court must review the ‘totality of the circumstances’ in order to determine whether due process has been violated. [Citations.]... [¶] Where the challenge is to the fairness of the pretrial identification the burden is upon the defendant to show that it was suggestive or unfair. [Citations.] If the defendant sustains his burden of showing the pretrial identification was suggestive, the in-court identification need not necessarily be excluded if the People can demonstrate that the in-court identification was otherwise reliable. [Citation.]” (People v. Johnson (1989) 210 Cal.App.3d 316, 322-323 (Johnson).) The defendant must show the unfairness of the confrontation as a demonstrable reality, not simply speculation. (People v. Perkins (1986) 184 Cal.App.3d 583, 589.) As explained in People v. Cunningham (2001) 25 Cal.4th 926, 989, “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” “ ‘We review deferentially the trial court’s findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.’ [Citation.] ‘Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 902.)
Ribeiro identified Minor at a single-person showup. Such a procedure “is not necessarily unfair and must be assessed in the light of the totality of the circumstances. [Citation.] One of the justifications for a showup is the need to exclude from consideration innocent persons so that the police may continue the search for the suspect while it is reasonably likely he is still in the area. [Citation.]” (Johnson, supra, 210 Cal.App.3d at p. 323; see also People v. Ochoa (1998) 19 Cal.4th 353, 413 [single person showup not inherently unfair].) “An innocent person who has been apprehended should not have to wait for the assembly of a lineup and the summoning of counsel while the real culprit puts more time, and presumably distance, between himself and the focal point of the offense.” (People v. Cowger (1988) 202 Cal.App.3d 1066, 1072.) Moreover, “the law favors field identification measures when in close proximity in time and place to the scene of the crime, with the rationale for the rule being stated: ‘The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later.” (In re Richard W. (1979) 91 Cal.App.3d 960, 970; see also People v. Nguyen (1994) 23 Cal.App.4th 32, 38-39.)
In the circumstances, we agree with the juvenile court that the showup at the hospital was not impermissibly suggestive. We recognize, as Minor points out, that Ribeiro testified that he was asked to “go to the hospital to identify the guy, ” that he had been told the person in front of the car had been shot, and that the person at the hospital had been shot. However, Ribeiro explained that the officer took him to the hospital to see whether the person at the hospital was the one who went in front of the car; there is no indication that Fernandez told Ribeiro he believed Minor was in fact the culprit. Moreover, before identifying the other two suspects, Ribeiro had been told that the fact that he was being taken to view someone did not mean the person was involved in the crime, and that it was as important to free innocent people as to identify the guilty. Although Fernandez was not certain whether he had repeated the admonition to Ribeiro before taking him to the hospital, there is no reason to think Ribeiro would not have recalled it a short time later or that he would have thought it did not apply to the showup at the hospital. And although Muro did not testify at the hearing, the evidence supports a conclusion that Ribeiro was able to understand Fernandez through Muro’s translation, and there is no suggestion that Muro had any bias or motive to mislead or distort rather than translating neutrally. (See Correa v. Superior Court (2002) 27 Cal.4th 444, 466-467.) The showup took place within a few hours of the crime—time during which Minor was apparently seeking treatment for gunshot wounds. Thus, the incident was still fresh in Ribeiro’s mind when he identified Minor.
The proximity of the showup to the crime distinguishes this case from People v. Bisogni (1971) 4 Cal.3d 582, upon which Minor relies. The witnesses there had been taken to a police station more than five months after a robbery and told they were to view and try to identify possible participants in the robbery. (Id. at p. 585.) After viewing one suspect in a lineup and identifying him, the witnesses were asked to look through a hole in a door or wall, where they saw another suspect, a woman, alone in a room. Two of the witnesses identified the second suspect. (Id. at p. 586.) The court concluded the viewing of the second suspect strongly suggested that she was probably the female robber, that there was no emergency requiring a single person showup, and that because the showup occurred many months after the robbery, the identification could not have been based on recent memories of the robbers. (Id. at pp. 586-587.) Here, on the other hand, Ribeiro had been told that a showup did not indicate guilt, and the showup occurred shortly after the crime, when Ribeiro’s memory of events was fresh.
Nor are we persuaded by Minor’s reliance on People v. Sandoval (1977) 70 Cal.App.3d 73. There, the victim of a robbery was at a police station, and was told that the suspect would be brought through the hallway. She identified the defendant as he passed, knowing that he was the man police thought had taken her purse. (Id. at pp. 80, 85.) Here, as we have noted, Ribeiro had been told that the fact that a person was in a showup did not indicate that he was guilty, and he does not appear to have been told the police believed Minor was one of the robbers.
Accordingly, we conclude the identification procedure was not unduly suggestive, and therefore reject Minor’s contention that Ribeiro’s identification of him should have been suppressed.
B. Gang Conditions
Among the conditions of probation, the court ordered: “[Minor is] not to associate with persons who he knows to be gang members. And you’re not to be a gang member and you’re not to knowingly engage in gang activity or knowingly wear gang colors including red, blue and any other color that you know has been specified by the probation department. You’re not to knowingly wear gang clothing or knowingly wear or display gang signs or insignias, and you shall not knowingly possess gang paraphernalia or indicia.” According to Minor, the restriction on wearing gang clothing is unconstitutionally vague, and the restriction on wearing gang colors is unconstitutionally overbroad.
“The juvenile court has wide discretion to select appropriate conditions [of probation] and may impose ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Because the goal of juvenile probation is the rehabilitation of the offender, “ ‘a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.... ’ ” (Ibid.)
It is well established that “ ‘[w]here a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course.’ [Citation.]” (In re Victor L. (2010) 182 Cal.App.4th 902, 914 (Victor L.).) Here, Minor had acknowledged to the probation department that he associated with members of a gang known as “Da Bays Grimiest.” The juvenile court could reasonably have genuine concern that Minor was at risk of falling under the influence of a gang.
“A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) It may be appropriate for a juvenile court to leave the precise details of what is forbidden to the probation officer in the first instance; if the minor disagrees with the probation officer’s determination, he or she may move to modify the condition of probation. (Victor L., supra, 182 Cal.App.4th at pp. 918-919 [probation officer could properly decide in first instance which gang areas the minor must avoid].)
According to Minor, the restriction against knowingly wearing “gang clothing” suffered from vagueness because it failed to provide notice of which articles of clothing were forbidden. The Attorney General does not object to modifying this portion of the gang conditions to forbid Minor from wearing any clothing that he knows or thatthe probation officer informs him is evidence of affiliation with or membership in a criminal street gang. (See People v. Leon (2010) 181 Cal.App.4th 943, 951 (Leon).) We agree that, as so modified, the gang clothing condition does not suffer from unconstitutional vagueness.
Minor also contends the restriction on gang colors is unconstitutionally overbroad because the colors he is forbidden to wear are not limited to the gang whose members he is known to associate with. He points out that red and blue are the colors claimed by Norteño and Sureño gangs, respectively, and that the record is devoid of evidence that he is associated with either a Norteño or a Sureño gang. (See People v. Valdez (1997) 58 Cal.App.4th 494, 499, fn 2 [expert testified that Hispanic gangs fall into Norteño and Sureño categories, that Norteño gangs identify with the color red, and that Sureño gangs identify with the color blue].) According to Minor, the condition is overbroad because it reaches the colors of gangs that he is not known to have any association with—including, he argues, potentially any color worn by any gang anywhere in the country.
We reject this contention. The court in Leon considered whether a gang condition that prohibited the defendant from wearing or displaying clothing or other items that were evidence of affiliation with or membership in a criminal street gang was overbroad because the condition was not limited to the defendant’s gang of choice, the Norteños. The court answered that question in the negative, concluding that the word “Norteño” did not need to be mentioned to save the condition from being overbroad. (Leon, supra, 181 Cal.App.4th at pp. 950-951.) Nor is there any reason to believe Minor’s probation officer would forbid him from wearing colors not associated with any gang Minor is likely to come into contact with. (See Victor L., supra, 182 Cal.App.4th at p. 918-919 [if minor disagrees with probation officer’s determination of forbidden area, he may move to modify condition of probation].)
Accordingly, we see no error in the restrictions on gang colors.
The Attorney General suggests the following modification to the clothing and paraphernalia conditions: “ ‘You are not to possess, wear or display any clothing, paraphernalia, indicia, or insignia that you know or that the probation officer informs you is evidence of affiliation with or membership in a criminal street gang.’ ” This language is derived from Leon, which, in the face of a challenge to gang conditions on grounds of overbreadth and vagueness, modified the conditions to read: “ ‘You are not to possess, wear or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandanna, jacket or other article of clothing that you know or that the probation officer informs you is evidence of, affiliation with, or membership in a criminal street gang.’ ” (Leon, supra, 181 Cal.App.4th at p. 951.) Minor’s challenge is limited to the restrictions on gang clothing and colors. Whether or not we agree that the language the Attorney General proposes would be preferable to that used by the juvenile court, we will not modify the court’s order in the absence of demonstrated error.
III. DISPOSITION
The probation condition prohibiting Minor from wearing gang clothing is modified to prohibit him from wearing any clothing that he knows or that the probation officer informs him is evidence of affiliation with or membership in a criminal street gang. In all other respects, the orders appealed from are affirmed.
We concur: RUVOLO, P.J., REARDON, J.