Opinion
B196501
4-17-2008
In re R.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
The juvenile court sustained a petition filed under Welfare and Institutions Code section 602 and found true allegations that minor and appellant R.S. committed one count of second degree robbery and one count of misdemeanor battery. On appeal, R. S. contends, first, there is insufficient evidence to support the true finding on the robbery count; second, the witnesses out-of-court identifications resulted from a suggestive show-up procedure; and, third, certain probation conditions should be modified. We reject each contention and affirm the judgment.
Although R.S. initially raised the contention that the juvenile court failed to exercise its discretion in setting the maximum term of confinement, she has withdrawn it.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Around 9:50 p.m. on December 11, 2006, Franklin Caballero, Junior Ramos, and Johnny Montoya were walking on Vermont Boulevard headed to Wilshire to catch a bus. They saw a group of around 11 women and men, all of whom were Black. Some of the group came from a nearby Dennys. About four members of the group approached Caballero, Ramos, and Montoya and asked them where they were from. Someone called Caballero and his friends "bitch" and "motherfucker." One man gestured to indicate he had a hidden weapon and rifled through Caballeros pockets, taking $128, a watch, a gold chain, and cell phone.
Johnny Montoya is also referred to as Johnny Portillo.
Ramos and Montoya ran away. Three girls were smoking at the corner of Wilshire and Vermont. Ramos tried to run through them. The girls grabbed and pushed him, and a girl tried to kick Montoya. Ramos saw some of the people who attacked Caballero go into the Dennys, but he thought that the girls stayed at the bus stop "or something like that."
Ramos or Montoya called the police, and officers arrived within two minutes. Ramos told them he saw 12 people involved get on a bus. Officers therefore stopped the bus and pulled some people off. Caballero, Ramos, and Montoya identified nine people, including R.S., as being involved in the incident. None of the items taken from Caballero were recovered from any of the suspects, including from R.S.
II. Procedural background.
On January 10, 2007, the juvenile court sustained a petition filed under Welfare and Institutions Code section 602 and found true that R.S. committed one count of second degree robbery (Pen. Code, § 211) and one count of misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). The court declared R.S. to be a ward of the court and placed her in Community Camp for three months. The court set the maximum term of confinement at five years, two months.
DISCUSSION
III. Sufficiency of the evidence to support sustaining the petition on the robbery count.
R.S. contends there is insufficient evidence to support a finding she aided and abetted a robbery. We disagree.
We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) To determine whether the evidence is sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment 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.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) "We draw all reasonable inferences in support of the judgment. [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears "`that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
To prove robbery, the People must establish that the defendant (1) took property from the victims person or immediate presence, (2) by means of force or fear, (3) with the specific intent to permanently deprive the victim of the property. (§ 211; People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see also Pen. Code, § 31 [all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet its commission are principals in any crime so committed].)
For example, in People v. Hill (1998) 17 Cal.4th 800, 851, defendant and two other men surrounded the victims car. Defendant went to the drivers side and talked to the driver while another man went to the passenger side and grabbed the passengers purse. The court found that the jury could reasonably infer from this evidence that defendant and the man who actually took the purse were working together. (Id. at pp. 851-852.) The defendant was therefore guilty of robbery under an aiding and abetting theory.
Although R.S. seeks to distinguish Hill, the evidence here permits a similar reasonable inference that she aided and abetted the robbery of Franklin Caballero. The evidence is Caballero, Ramos, and Montoya were walking together when a group of people accosted them. Items were taken from Caballero, but Ramos and Montoya were able to escape. R.S. and two other girls were standing nearby, and when Ramos and Montoya ran by or through them, R.S. grabbed and tried to kick or trip them. Similar to what happened in Hill, this fact certainly supports the inference that R. S. tried to stop Ramos and Montoya from escaping and seeking help. R.S. was also on the bus and taken off with other people ultimately identified as having participated in the robbery, which fact further supports the reasonable inference she was a part of the group that robbed Caballero.
R.S. argues that the evidence supports the alternative explanation that she and her friends were merely standing at the bus stop and only attacked Ramos and Montoya because she thought they were going to attack her. Moreover, that she was on the bus with other people who were ultimately identified as having participated in the crime is of no moment because she was simply waiting for the bus. That certainly is one interpretation of the evidence. The trier of fact, however, took the opposite view, and, on this record and under the applicable standard of review, we may not now reverse it.
IV. The show-up procedure.
R.S. next contends that the out-of-court identifications were made during a suggestive show-up procedure that was unreliable; hence, there is insufficient evidence she was involved in the incident. We disagree.
A. Additional facts.
Detective Gilbert Alonso arrived at the scene at about 10:00 p.m., by which time officers had pulled 12 people, all Black, off a bus. Ramos had told officers that he saw people involved in the attack get on the bus. A witness had also provided a description to officers of their assailants, although Detective Alonso did not know what was the description. Detective Alonso then conducted a field show-up of the 12 people pulled off the bus. The detective admonished each witness separately, and each witness said he understood the admonishment. The detective then had one witness view one person at a time. An officer accompanied each suspect, who was handcuffed and placed against a wall, while the witness stood about 35 feet away. Light from a Dennys sign and from the sidewalk lit the area. Detective Alonso would ask one witness to look at a suspect while the other two witnesses were with officers "approximately 20 feet away."
It is unclear which of the witnesses provided the description. Caballero answered no to the ambiguous question, "Is it true that you did not provide a description of the assailants to police before you saw the group of Black young people?"
Caballero, Ramos and Montoya identified the same nine people as being involved in the incident, and they also agreed that the same three suspects were not involved in it. Caballero and Ramos identified R.S. as the person who grabbed and hit Ramos. Montoya also identified R.S. as the person who tried to grab Ramos.
At trial, neither Caballero nor Ramos could identify R.S.
B. The show-up procedure was not suggestive.
"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable." (People v. Yeoman (2003) 31 Cal.4th 93, 123; see also Manson v. Brathwaite (1977) 432 U.S. 98, 106-114.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) "`The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; 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 criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (Ibid.) Unfairness must be proved as a "`demonstrable reality, not just speculation." (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)
R.S. argues that the show-up procedure employed here was unfair, and led to an unreliable identification, because, first, there was no evidence of the criteria the officers used to select the 12 people who were taken off the bus; second, there was no evidence that standard field admonishment cards were used; and, third, the evidence suggests that the witnesses gave collective, rather than separate, identifications.
R.S. is first wrong that there was no evidence concerning what criteria officers used to select people from the bus. Caballero testified he first identified his assailants while they were on the bus. Moreover, Detective Alonso testified that a description of the assailants was given to officers, although he did not know what it was and it was not in the report.
Second, Detective Alonso testified he admonished the witnesses before they viewed the suspects. For example, he admonished Caballero "that there [were] individuals detained. And based on the officers initial preliminary investigation there, it was possible that some of the individuals that were detained were not, may or may not be responsible for the crime being investigated, which was robbery at that moment, and we needed to do a field show up to rule whether or not the individuals temporarily in custody are responsible for the crime or not." Thus, there was evidence that the witnesses received a proper admonishment before the field-show-up.
R.S., however, argues that officers suggested who the witnesses should select. Ramos testified that an officer said, "`We have stopped these people. We want you to tell us what they did." A problem with this argument is Ramos was responding "yes" to a question phrased by the prosecutor; Ramos did not testify that this is precisely what an officer told him. Moreover, Detective Alonso testified he told the witnesses that the detained people may or may not have been involved. The trier of fact was therefore entitled to believe that the witnesses, who told Detective Alonso they understood the admonishment, followed it.
Finally, the trier of fact was also entitled to believe Detective Alonsos testimony regarding how he conducted the field-show-up, notwithstanding what R.S. calls "conflicting" evidence. Detective Alonso testified he separated the witnesses while they were viewing the suspects, and he had them view the suspects one at a time. R. S., however, points out that Ramos said, "They had us sitting in a place for us to identify them," which she suggests indicates that the three witnesses were together when they identified the suspects. Ramoss statement does not, however, expressly contradict Detective Alonsos testimony that Ramos identified the suspects separately from Caballero and Montoya. R.S. then speculates that even if the witnesses were separated by 20 feet, they could of nevertheless signaled their identifications through nods or headshakes. Anything is possible, but the standard of review does not depend on what is possible. Rather, we must look to the record, which here contains nothing to suggest or support such collusion.
To the contrary, of the 12 people the witnesses independently viewed, the witnesses each identified the same nine people as being involved and identified the same three people as not being involved. To be sure, there is no evidence in the record concerning what these three people looked like (other than that they were Black). But the absence of that evidence does not, based on this record, render the identifications made unreliable. Indeed, Detective Alonso said that the witnesses did not hesitate in making the identifications, instead, they were "pretty positive." R.S. argues that "pretty positive" is not the same as being certain. They may or may not be exactly the same, but R.S. does not argue how they are substantively different for the purpose of determining whether the out-of-court identifications were unreliable.
We therefore conclude that the show-up procedure was not suggestive.
V. Conditions of probation.
R.S. contends that conditions of probation Nos. 15, 15A, and 16 are overbroad because the juvenile court failed to impose a knowledge requirement. We disagree.
Condition of probation No. 15 directs R.S. not to associate with co-minors, anyone disapproved of by her parents and probation officer, and with the Young Organized Players, a gang. If this condition of probation did not contain an express requirement she know the identity of those individuals of whom her parents and probation officer disapprove, then it would be overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890-891; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 [if a knowledge requirement is not explicitly stated, it will be implied].) Here, however, the juvenile court, both orally and in writing imposed that knowledge requirement. At the sentencing hearing, the juvenile court said, "Do not associate with ... anyone known to you to be disapproved by your parents or guardians or your probation officer; a member of a criminal street gang, a member of Young Organized Players, Y-O-B; do not participate in any type of gang activity; do not have any dangerous or deadly weapons in your possession or remain in the presence of any unlawfully armed person ...." (Italics added.) The minute order also has the knowledge requirement handwritten above condition of probation No. 15. The handwritten portion is concededly sloppy, but the imposition of the knowledge requirement is nonetheless clear. It is also clear that the knowledge requirement extends to the condition R.S. not associate with a criminal street gang, namely, the Young Organized Players.
R.S. attacks condition of probation No. 16 on a similar ground. It states: "Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person." Again, the juvenile court handwrote a knowledge requirement above "nor remain in the presence of any unlawfully armed person." Therefore, the court clearly prohibited R.S. from remaining in the presence of any person she knows to be unlawfully armed.
Finally, R.S. contends that condition of probation No. 15A—directing her not to participate in any type of gang activity—infringes on her freedom of association. She cites People v. Garcia (1993) 19 Cal.App.4th 97, to support her argument that the condition is unconstitutionally vague and overbroad because it does not state what activities she must avoid. Garcia, however, concerned a condition of probation directing the defendant to refrain from associating with users and sellers of narcotics, felons, and ex-felons. (Id. at p. 102.) Because the condition did not have a knowledge requirement, the court found the condition to be overbroad and modified it to provide that the defendant was not allowed to associate with persons he knew to be users or sellers of narcotics, felons or ex-felons.
Garcia does not help R.S. in her argument here that condition of probation No. 15A is similarly overbroad. Courts have "broad discretion in establishing conditions of probation in juvenile cases." (In re Antonio R. (2000) 78 Cal.App.4th 937, 940.) Consistent with the rehabilitative goals of probation, courts may restrict the places minors may go and the people they may contact. (Id. at p. 942.) Condition of probation No. 15A is specific: It prohibits R.S. from participating in, implicitly, criminal, gang activity. Moreover, condition of probation No. 15, of which No. 15A is a subpart, identifies the gang with which R.S. is not permitted to associate: Young Organized Players. Thus, the probation condition is not overbroad.
DISPOSITION
The judgment is affirmed.
We Concur:
KLEIN, P. J.
KITCHING, J.