Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J05001385
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Derrick J. (defendant) appeals from the juvenile court’s jurisdictional order finding that he committed assault and robbery on an AC Transit bus. Defendant’s counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
Procedural Background
On May 1, 2007, the District Attorney filed a subsequent juvenile wardship petition pursuant to Welfare and Institutions Code section 602 alleging in three counts that on or about April 28, 2007, defendant, a minor: (1) robbed Joshua S. of personal property, in violation of Penal Code section 211 ; (2) assaulted Joshua S. with a weapon (hands and feet) by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(1); (3) robbed Joshua S. on an AC Transit bus, in violation of sections 211 and 212.5, subdivision (a). The jurisdiction report notes that at the time of robbery defendant had 15 referrals to the Probation Department, was in placement at a group home in Danville, California, and “was on a home pass at the time of this alleged offense.” On May 15, 2007, the juvenile court ordered defendant detained and set a jurisdictional hearing for May 18, 2007.
Further statutory references are to the Penal Code unless otherwise denoted.
At the jurisdictional hearing on May 18, 2007, the juvenile court granted the district attorney’s oral motion to amend the subsequent petition to strike count 1. The jurisdictional hearing continued over May 23 and May 30. On June 1, 2007, defense counsel filed a motion to strike defendant’s in-court identification by the victim, contending that the in field show-up by the investigating officer was unduly suggestive. On June 4, 2007, the juvenile court denied the defense motion to strike the victim’s in-court identification of defendant, the parties rested on the issue of jurisdiction, and the juvenile court took the matter under submission.
On June 7, 2007, the juvenile court found that count 2 [assault in violation of section 245, subdivision (a)(1)] and count 3 [robbery on an AC Transit bus in violation of sections 211 and 212.5, subdivision (a)] were true beyond a reasonable doubt. In the dispositional report filed on June 15, 2007, the probation officer opined that if defendant did not mend his ways “a commitment to the California Youth Authority or a remand to adult court may be imminent,” but “reluctantly” recommended that defendant was “worthy of one more chance to complete an out-of-home placement.” At a dispositional hearing on June 21, 2007, the juvenile court ordered that defendant be committed “to the care, custody and control of the Probation Officer to be placed in a suitable foster home or private institution or group home/county facility.” Also, the juvenile court determined that the maximum period of confinement for the offenses sustained in the petition is seven years. Further, the juvenile court ordered that defendant be detained and set a placement review hearing for July 6, 2007. On June 21, 2007, defendant filed a notice of appeal challenging the juvenile court’s jurisdictional findings regarding counts 2 and 3 of the petition.
Jurisdictional Hearing
The victim, Joshua S., testified that on April 28, 2007, he got on the AC Transit bus number 801 at about 12:15 a.m. to travel to his work as a night janitor. He stated that he sat in a window seat on the passenger side of the bus about halfway back. Joshua called his coworker on his cell phone because he was running a few minutes late. As he was using his cell phone, someone struck him on the left side of the face two or three times. The person who struck him was 16-20 years old, “dark-complected,” about five feet eight inches in height, of a “skinny” build, and wearing a green shirt with a stripe on it. Joshua identified this individual in court as defendant.
Joshua testified that after defendant struck him in the face, he was pulled to the ground by his shirt, dragged towards the back door of the bus, and kicked several times by defendant on his shoulder, ribs, and the top of his hand. While defendant was kicking Joshua, another person took his wallet from his back pocket. The person who took his wallet wore a red shirt with the outline of a skeleton on it. Joshua described the youth in the red shirt as between 16 and 20 years of age, African-American, and tall and thin in build. He wore “colorful” shoes and was slightly taller than defendant. After they took his wallet, the youths ran out of the back door of the bus and Joshua saw his wallet tossed to the ground. He went off the bus to pick up his wallet but never recovered it. The wallet contained a driver’s license, bus pass, social security card, and some phone numbers.
The bus driver asked Joshua to sit down and wait for the Sheriff, who arrived about a minute later. The Sheriff’s officer questioned Joshua and took his description of the perpetrators before asking him to view a number of suspects who had been detained a few blocks away. Joshua stated that the individuals he was shown were not involved. After the show-up, the Sheriff took Joshua back to the scene and the paramedics took him to the hospital in San Leandro.
Later, the same Sheriff came to the hospital. After reading and signing a field identification admonition, the Sheriff had Joshua look at two people in the hospital parking lot as he sat in the back seat of a police car. Joshua looked at two individuals separately as they stood at the same spot in the parking lot. Joshua testified that he recognized the two people “right off” as the persons who robbed him on the bus. He identified them in court as defendant and codefendant Ronnie B. Joshua stated that defendant was wearing a green shirt at the show-up, and he was the one who had hit him about the head during the robbery. The other person was wearing a red shirt with a skeleton design on it and multi-colored shoes.
On cross, Joshua stated that before he was hit he noticed the defendants sitting across the aisle from him. They were not sitting together: the one in the green sweatshirt was sitting across the aisle and one seat back, and the one in the red shirt sat in the seat behind that. Joshua stated that he also noticed both defendants as they got on the bus. He stated he is “usually pretty alert on the bus” and although he does not keep constant watch he does look around quite often. He also “turned and made eye contact” with defendant just as defendant walked up to him and before he received the first blow to the face. Also, he got a look at defendant’s face again for about five seconds after defendant got off of the bus and was walking away. Regarding the first field show-up, Joshua said that he recognized the three individuals he was shown as all having been in the very back of the bus. After Joshua was admitted to the hospital, Deputy Sheriff Rugama called and informed him that he had detained potential suspects. Joshua told Deputy Rugama that he could not leave the hospital so Deputy Rugama said he would bring the individuals there.
The bus driver testified that she made a stop to let a passenger off and some teenagers in back stood in the doorways and stopped the doors from closing, so the bus could not move. She parked the bus and got off to ask a group of girls to move away from the bus so she could close the doors. Then she noticed a fight had started on the bus. She called central dispatch. Four or five people were involved. She saw one person in particular holding on to the poles for support and kicking and stomping on another person. The person holding on to the poles was wearing a red “hoody” with a white skeleton on it. She did not know what any of the people involved looked like and she did not recognize defendants in court. She was unable to provide any descriptions to the Sheriff at the scene.
Alameda County Deputy Sheriff Rugama testified that he works for AC Transit Police as a Transit Officer. Deputy Rugama stated that when he arrived at the scene shortly after 1:00 a.m. he contacted the victim, Joshua S., who reported that a group of black males assaulted him and took his wallet. The deputy spoke to Joshua again after he received treatment from the ambulance personnel on the scene. At that point, Joshua was able to provide descriptions for two of his attackers. Deputy Rugama learned four youths had been detained a few blocks away, but at the in field show-up Joshua said none of them were involved in the robbery. After Joshua was transported to hospital, Deputy Rugama went back on patrol and eventually ended up at 2:37 a.m. in the downtown Oakland area at 14th and Broadway, which is a main bus stop on that thoroughfare. Deputy Rugama noticed two black juveniles standing on the corner who matched the descriptions of the two persons involved in the robbery in terms of height and weight, and the clothes they were wearing.
Deputy Rugama advised dispatch he had the possible robbery suspects, and another deputy arrived on the scene. The deputies detained the juveniles and placed them in handcuffs. Subsequently, the juveniles were transported to San Leandro hospital, one in each of the police cars. Deputy Rugama identified the juveniles in court as the defendants. Once at the hospital, Deputy Rugama contacted Joshua in the emergency room, had Joshua read and sign the field identification admonition, and took him in the patrol car to the outer end of the parking lot, where Deputy Gannon was waiting with the two suspects. This took place around 3:15 a.m. Joshua sat in the back of the patrol vehicle about 15 yards from the suspects. Codefendant Ronnie B. was already outside Deputy Gannon’s police vehicle. Deputy Rugama shone his light on Ronnie B. and Joshua immediately recognized him as one of the robbers by his clothes (the red sweatshirt with the skeleton bone design), his face and his multicolored shoes. Deputy Gannon then removed defendant from the police vehicle. Joshua immediately recognized defendant as the person who initially came up to him and hit him in the face. Joshua said he recognized defendant by his green sweater, his clothes and his face. In the show-up, each of the subjects was viewed separately and each was handcuffed.
Discussion & Analysis
As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that defendant’s counsel has filed a Wende brief raising no arguable issue, counsel informed defendant of his right to file a supplemental brief, and defendant did not file such a brief. We have also independently reviewed the entire record for potential error.
We review the evidence supporting the juvenile court’s jurisdictional findings in the light most favorable to the juvenile court’s order. (See, e.g., In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.) Where there is substantial evidence supporting the juvenile court’s decision, we must affirm. (Id. at pp. 615-616.) Moreover, “[i]n reviewing the sufficiency of the evidence, the 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.’ [Citation.] ‘To warrant rejection of a witness’ testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness.’ ” (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) In this case, the victim’s testimony and identification of appellant as the robber provides substantial evidence for the juvenile court’s jurisdictional findings.
Nor do we think that the victim’s in-court identification of defendant as the robber was tainted by an unduly suggestive pre-trial identification procedure. In assessing whether a pre-trial identification procedure is so unduly suggestive that it violates due process 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. (Citations.)” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) Moreover, a pretrial identification procedure violates a defendant’s due process rights only “ ‘if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification.’ The defendant bears the burden of showing unfairness as a ‘demonstrable reality,’ not just speculation. [Citations.]” (People v. Contreras (1993) 17 Cal.App.4th 813, 819, italics added; People v. Cunningham, supra, 25 Cal.4th at p. 990 [stating that “there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “totality of the circumstances” ’ to warrant reversal of a conviction on this ground”].)
The Supreme Court has clearly held that single person, in-field show-ups of the type employed in this case are not inherently unfair. (People v. Floyd (1970) 1 Cal.3d 694, 714, disapproved on another basis by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) Indeed, “the propriety of the prompt in-the-field identification by an eyewitness has been upheld repeatedly by both state and federal decisions. [Citations.]” (People v. Odom (1980) 108 Cal.App.3d 100, 110.) “[S]ingle person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. [Citation.] The law permits the use of in-field identifications arising from single-person show-ups so long as the procedures used are not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. [Citation.]” (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.) Here, the show-up procedure took place in the hospital parking lot because the victim was still awaiting or receiving treatment at the emergency room, and it took place within about two hours of the robbery, during which time police were actively seeking persons matching the descriptions of the perpetrators. Moreover, the police took specific care to assure that the victim viewed each of the two subjects separately and individually, and admonished the victim that the persons he was about to view might or might not be the persons who committed the robbery, that the purpose of the procedure was as much to free the innocent as to identify the guilty, that he was under no obligation to make an identification, and that he should not let the fact that the persons were being detained influence him. In sum, the procedure was not overly suggestive.
Even if it was suggestive, it did not violate defendant’s rights to due process. The victim in this case had several opportunities to view defendant: he noticed defendant get on the bus; he saw defendant as defendant sat across the aisle from him and one seat back; he made “eye contact” with defendant just before defendant struck him; and he got another good look at defendant as defendant walked off after exiting the bus. The victim was paying attention to those around him on the bus, as was his habit. In addition, the victim accurately described the race, height and build of, and clothing worn by, defendant. Only a couple of hours elapsed between the robbery and the in-field identification, and the victim said that he recognized the two suspects “right off” as the persons who robbed him on the bus when he viewed them in the hospital parking lot. In sum, the totality of the circumstances presented here do not raise a “ ‘substantial likelihood of irreparable misidentification.’ ” (People v. Cunningham, supra, 25 Cal.4th at p. 990.)
DISPOSITION
The juvenile court’s dispositional order is affirmed.
We concur: McGuiness, P. J., Pollak, J.