Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. JV 23728.
Richman, J.
A.H. appeals a dispositional order of the juvenile court placing her on one year of probation following a wardship petition (Welf. & Inst. Code, § 602) sustained for second degree robbery (count 1; Pen. Code, §§ 211, 212.5, subd. (c)) and giving a peace officer false identification (count 2; Pen. Code, § 148.9, subd. (a)). She claims no error in the disposition on the false identification count but challenges the robbery on two bases: (1) denial of her motion for a lineup under Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans), and (2) insufficient evidence. We reject both challenges and affirm.
I. The Background
The incident giving rise to both counts occurred in San Francisco, and the petition filing, denial of the Evans motion, and jurisdictional contest occurred in the San Francisco Superior Court (In re A. H. (SuperCt. S.F. City and County No. JW 06-6244)). The case was then transferred to Marin County for disposition (In re A. H. (Super Ct.Marin County No. JV 23728)) where it was found that A.H. lived with her mother. Both appeal issues concern the San Francisco proceedings. We detail here the jurisdictional evidence and, in part IIB, the showing made on the earlier Evans motion.
Lugo Jaime Gutierrez, the victim, testified through an interpreter. He left Club Tapatio around 1:40 a.m. on April 1, 2006, looking for a cab to take him home before he went to a work shift that would begin at 3:00 a.m. He was a regular at the club, had been there since 11:30 p.m. that night, and had three beers over that time but no drinks before then. The club closed at 2:00 a.m., and no one else was leaving when Gutierrez did. As he started walking down Mission Street, he noticed, without paying attention, that he passed a couple—a boy and girl—plus four other “guys” on the sidewalk. All six were Black and, he assumed, friends or together.
He had gone just a few yards when the girl came up, put her hand in his pants pocket and took his mobile phone plus, he would realize later, $200 in cash. He grabbed her hand and struggled with her for about four minutes, trying to get his phone back. He reached to retrieve the phone’s battery when it and the lid came out and fell during the struggle, but by then the five guys had begun kicking and hitting him, and one of them also grabbed for the battery and put his hand in Gutierrez’s pocket. All six assailants then took off running, and Gutierrez removed his belt so that he could defend himself if they came back. He followed after the boy and girl, who “didn’t run very far.” He confronted them, asking “[p]lease” for his phone back. Security guards from the club then arrived and helped, and when police arrived, Gutierrez was able to identify the girl to them, but not the others. He did not believe he struck either of the couple with his belt. He spoke to an officer at the scene and gave a statement to another officer later that evening at the police station.
Gutierrez had never seen the girl before but got a good look at her during the struggle and identified her in court as A.H. The others, he was sure, were males. They wore black jackets and “wide, big pants like the cholos wear.” Some had hats and some did not, but they had hoods, braids and not as much hair, and he did not see a girl among them. A.H. wore a black jacket of nylon or cotton, with a zipper and a hood that was not up but hung in the back, and blue jeans that were tight around the legs. She was six or seven inches shorter than him, had black braided hair (as in court), wore tennis shoes, and looked to be 17 to 18 years old. (A.H. was 15 years old at the time of the robbery.) The record does not show how closely this matched A.H., but Gutierrez described her as having black eyes, a round face, a “long, flat nose,” lips that were neither very full nor very thin, and a light-toned complexion for a Black person.
When asked about his statement at the police station, Gutierrez conceded that he had described the grabbing and running, but not the struggle with the girl, and that he had said, “I could possibly recognize her, but you know that here . . . most black people look alike.” He had said later in the interview, however, that he could identify the girl who took his money and telephone.
A security employee from the club testified that he was summoned by another security employee after 2:00 a.m. that night and saw a Hispanic man shaking his belt back and forth, about a block away, and had seen the man in the club a few times before.
Officer James Kelly testified that A.H. told him, after Miranda warnings at the scene that night, that she knew it was wrong to have given police false information about her identity.
A.H. did not testify but called 16-year-old Demetrius D., who testified that he was with her that night, having come from his Southern California home in Ontario to celebrate their one-year anniversary as boyfriend and girlfriend. The two of them, he said, took a bus from Marin City to his “god auntie’s house” in Richmond, met there with a female cousin of A.H.’s, the cousin’s boyfriend, and two other youths, and took BART to the Metreon in San Francisco. Arriving there late for a movie, the six opted to ride buses around the city. They got off one bus to switch to another, and as Demetrius and A.H. stood by a wall talking and not paying attention to what the others were doing, Demetrius heard a commotion, saw the cousin and boyfriend run by them, and then a Mexican man who came yelling and swinging a belt buckle. The couple ran, but the Mexican man cornered them and struck a backpack Demetrius wore on his back. When the man came at A.H. with the belt, Demetrius tried to help, but a security guard came.
II. Discussion
A. The Motion for Lineup Was Properly Denied
The Evans motion for a lineup was initially heard and denied a week before the jurisdictional hearing, based on a police report and a handwritten statement by A.H. from the night of the incident. A.H. renewed the substance of the matter as a “Green motion” to have Gurtierrez initially examined about his identification without A.H. present in court. (People v. Green (1979) 95 Cal.App.3d 991, 1003-1004.) By then the parties also had a transcript of Gutierrez’s taped police interview, also from the night of the incident. The court denied the Green motion before hearing any witnesses as to jurisdiction. We assume for sake of argument, as the parties evidently do, that the showing on both of those threshold motions is pertinent to the lineup question before us.
A problem in the briefing, however, is that the parties lump those showings together with the jurisdictional testimony, ignoring that we are limited to evidence that was before the court when it made its lineup-related rulings. (In re Zeth S. (2003) 31 Cal.4th 396, 405; In re James V. (1979) 90 Cal.App.3d 300, 304; People’s Home Sav. Bank v. Sadler (1905) 1 Cal.App. 189, 193-194.) The later testimony might help in assessing prejudice from any error, but we test a ruling itself only by the showing made then.
Most significantly, while Demetrius D. did not submit a statement, A.H. did and, contrary to Demetrius’s account of random bus riding with a group after missing a movie, related that she and her boyfriend were walking home from a party when she saw “a group of kids standing on a corner” rob a Mexican man. A girl and a boy each reached for the man’s phone, and A.H. was standing right there. When A.H. went to retrieve the phone for the man after it came apart and fell to the ground, the man thought she was robbing him. Everyone ran when the man took off his belt, and he hit A.H.’s boyfriend in the back before a man in a beige shirt detained them until police came. She said that police searched her and her boyfriend but “didn’t find anything to prove that we committed the crime.”
A narrative in the police report related that security guards at the club were alerted to a fight and that one of them, Otero, saw a group of people dressed in all black fleeing. He caught up with two people, later identified as Demetrius D. and A.H., who stopped. When officers arrived, Gutierrez told them that he was beaten by unknown suspects and that “the ‘girl’ ”—pointing to A.H.—had gone into his right pocket and taken $200 and a cell phone. Gutierrez told Otero that there was only one female in the group and that A.H. was the one who took the money and cell phone from his pocket. A.H. was arrested and at first gave a false name of Briana Daniels.
At the station, Gutierrez told police that there were five males and one female and that, while he was trying to get a cab, the female (A.H.) ran up and took his money and cell phone from his pants pocket. He was able to hold onto the battery of the cell phone. A.H. fled, and Gutierrez was immediately approached by five unknown suspects who hit him on the left side of his face, kicked him, and hit him with a stick on his left arm. All of the suspects fled when Gutierrez removed his belt and started to swing it around in self-defense. Gutierrez said that he could not identify any of the males, including the one detained (Demetrius D.), but could recognize and identify the woman. Gutierrez refused medical help, and Demetrius D. was released.
The transcribed and translated police statement by Gutierrez, partially revealed in the jurisdictional testimony, was essentially consistent with the police report narrative. Gutierrez said he had gotten to the club at 11:30 p.m. and left at 1:40 a.m. As he walked “on the block” looking for a taxi, the girl put her hand in his pocket and emptied it. She “took off running,” and five guys started beating him up. Gutierrez does not mention struggling with the girl but clarifies that, by saying she “put her hand on me,” she had not “hit” him. Asked if he would recognize “the girl and the guys” if he saw them again, he first said, “No, I wouldn’t recognize them, they all had hats on, covering them, almost all had braided hair and . . . it’d be very hard to recognize them.” Then asked, “And the girl, could you recognize her?” he answered: “I could possibly recognize her, but you know that here . . . most black people look alike . . . and well, I know that she was the only one who took my phone and right there I had my money . . . .” Asked again later whether he could recognize the girl, he confirms “Yes,” and when asked about the five guys who hit him, says: “I can’t recognize them” and “I didn’t get a good look at their faces because they all . . . had hats on and they all took off running.” When asked, “But the girl who took your money and telephone . . .,” he says, “Her I could . . . .” Finally, he answers “Yes” when prodded, “You know her, if you see her again you’ll tell us it was her.”
In denying the Evans motion, the trial court found no “sufficient cause for a lineup in this case.”
As later distilled by the Supreme Court, Evans “held that ‘due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.’ [Citation.] [However], . . . the right to a lineup arises ‘only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 235 (Williams).) “In Evans, ‘[i]t was argued in support of the motion [for a lineup] that because [the defendant] was identified at the scene of the robbery by witnesses . . . who saw only a limited view of [the defendant]’s head and shoulders from the rear, the identification was faulty; [and] that because the witnesses had committed themselves as to the identifications [at the preliminary hearing] they would be reluctant to recede from such a position, even if in error, at later proceedings in court . . . .’ [Citation.]” (Ibid.)
The People here conceded that identity was a material issue, but in contrast with the facts of Evans, there was no indication that Gutierrez had such a limited view, and he identified A.H. immediately at the scene and in a statement right afterward. Moreover, Gutierrez specified that there was only one girl among his assailants. His statement that “here . . . most black people look alike” was, if at first ambiguous, reasonably construed, in the full context of what followed, as an explanation or apology for why he could not identify any of the males. Gutierrez was clear, in the end, that he could recognize the girl, and his opportunity to view the males was obviously marred by being hit or kicked in the face.
A.H. points to Gutierrez having been drinking, but even that testimony showed only that Gutierrez drank three beers in nearly as many hours. It is true, as A.H. asserts, that this was a cross-racial identification, but that subject is ordinarily addressed in regular examination. (See, e.g., People v. Williams (1991) 228 Cal.App.3d 146, 149-150.) Moreover, the pertinent issue would be, not whether Gutierrez could readily distinguish the facial features of one Black assailant from another, but whether he could reliably determine, as he stated, that only one of them was female. We are aware of no authority that such an issue is productively resolved only through a lineup.
In Williams, denial of a lineup did not offend due process despite a five-year lapse between the incident and trial, family- and gang-based motivation for the witnesses to lie, and prior encounters with the defendant. (Williams, supra, 16 Cal.4th at p. 235.) Here there was a prompt trial, no motivation to lie, and no prior familiarity. The resolution of a lineup request “ ‘must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses.’ [Citation.]” (Id. at p. 236.) No abuse of discretion is shown in denying A.H. a lineup.
B. There Was Substantial Evidence
“The test on appeal for determining if substantial evidence supports a conviction is whether ‘ “a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.” ’ [Citation.] In making this determination, we ‘ “must view the evidence in a 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.” ’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23.)
A.H.’s evidentiary challenge to the robbery implicitly concedes that all elements of the crime are supported, but calls Gutierrez’s identification of her as the robber “highly suspect” and based on “inconsistent testimony.” She cites his testimony of a four-minute struggle, while having told police that the girl “didn’t hit me,” his not telling police he chased two people with his belt, and his saying at one point that “all six” youths took off running while a boy and a girl did not run. A.H. also relies on her boyfriend’s support of her alibi account, calling him an “unimpeached” witness.
The complete answer is that these were credibility and conflict resolutions that cannot be second-guessed by an appellate court (People v. Huston (1943) 21 Cal.2d 690, 693) and that the boyfriend was indeed impeached, at the very least by his implicit bias and motive to protect A.H. The in-court identification, moreover, was consistent with the on-scene identification, and Gutierrez was examined at length about this in court and was sure of his identification. The court could reasonably find the identification both convincing and credible. (See People v. Champion (1995) 9 Cal.4th 879, 926-927.)
III. Conclusion
The judgment is affirmed.
We concur: Haerle, Acting P. J., Lambden, J.