Opinion
A146545
02-14-2017
In re M.J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J10-01567)
M.J. was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice after he was found to have committed three counts of second degree robbery (Pen. Code, §§ 211, 212.5). He asserts the juvenile court's jurisdictional findings must be reversed because a witness's prehearing identification was impermissibly suggestive. We disagree and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Before the instant proceedings began, M.J. was already a ward of the juvenile court, having three prior wardship petitions (Welf. & Inst. Code, § 602) sustained against him. In July 2015, the Contra Costa County District Attorney filed a fourth supplemental wardship petition (id., § 602), alleging 17-year-old M.J. committed three counts of second degree robbery (Pen. Code, §§ 211, 212.5) and was armed with a firearm in committing the offenses (id., § 12022, subd. (a)(1)). The petition further alleged M.J. had prior adjudications that could increase his commitment time—misdemeanor grand theft (id., § 487, subd. (c)), second degree robbery (id., §§ 211, 212.5), and felony attempted grand theft from a person (id., §§ 487, subd. (c), 664). M.J. was found ineligible for deferred entry of judgment and was detained in juvenile hall pending further proceedings.
At the contested jurisdictional hearing, W.R. and R.A. both identified M.J. as one of three perpetrators who, on April 27, 2015, at approximately 4:00 p.m., robbed them of their cell phones, money, and other valuables at gunpoint. The victims, W.R., R.A., and David C., were sitting together in a Richmond park across the street from their high school when they were approached by three African-American males. One pulled out a small black handgun, with a laser sight activated, and told W.R., R.A., and David to hand over their phones and other property. R.A. had to translate the demands for W.R. and David, both of whom had difficulties understanding English. W.R., R.A., and David did as they were told, emptying their pockets of their phones, cash and other valuables. The three suspects each took items and ran.
At the jurisdiction hearing, W.R. identified M.J. as the robber who stood in front of him and "took everything [W.R.] had"—W.R.'s "telephone and money and Clipper, BART [card]." W.R. handed his possessions directly to M.J.; the individual with the gun was pointing it at R.A. Both W.R. and R.A. said M.J. was not the individual who held the gun. R.A. described the individual interacting with W.R. as tall, African-American, with a mustache and a hooded jacket. R.A. said the hood was not covering the individual's face during the robbery, but he also added, "I didn't look at him. I looked at the guy that was pointing the gun at me."
The robbery was immediately reported to the Richmond police. W.R. described one of the suspects (later identified as M.J.) as being thin and wearing a green jacket with a hood, pulled down to his nose. W.R. also told the officer that two of the three robbers may have been students from his school because he recognized a school backpack. Although W.R. did not recognize M.J. at the time of the robbery, W.R. saw M.J. in his history class three days later. W.R. recognized M.J. immediately by the gold "plate" he wore on his teeth. M.J. also followed W.R. to his physical education class, where M.J. and several other boys stared at W.R. After several days of this intimidation, W.R. reported M.J.'s conduct to the principal. R.A. also testified that after the robbery, he spoke once or twice with W.R. and David about seeing one of the suspects at school. W.R. told R.A. he had also "seen someone in school that was involved," close to the cafeteria doors. R.A. also "saw him there." However, R.A. testified that his in-court identification was not based on these conversations but because "[he] remember[ed] [M.J.]"
At the start of the contested jurisdictional hearing, when the juvenile court inquired as to motions, defense counsel replied: "[T]here's a potential [Evidence Code section] 402 issue, regarding the admonishment and lineup. However, in all candor, the level of scrutiny is unduly suggestive, and I'm not sure that it will reach that level. It was a statement made to one of the witnesses or one of the victims while looking at a photo lineup. So I would like to reserve argument on that. But I believe that it would probably be an argument addressed . . . to the weight of the evidence as opposed to something that would be exclusionary. [¶] I also am not sure what my remedy would be if the court were to exclude because I imagine there would be some type of other identification in the record." However, no further objection was made when the prosecution presented evidence that, two weeks after the robbery, W.R. identified M.J. from a photographic lineup as one of the individuals involved in the robbery.
Defense counsel raised a hearsay objection, which was overruled.
More specifically, Richmond Police Officer Savannah Stewart testified she went to W.R.'s home on May 13, 2015, and showed him a series of photographs that included M.J.'s. With the assistance of a translator, Stewart read W.R. a preliminary admonition—"that the people in the photo lineup may or may not be the suspect." When she showed W.R. the photo of M.J., W.R. immediately "identified [M.J.] as being the robbery suspect." R.A. saw a similar lineup, containing M.J.'s photograph, but made no identification.
On cross-examination, defense counsel engaged Stewart in the following colloquy:
"[Defense counsel]: Isn't it true that you said something to [W.R.] after he looked at the picture of [M.J.]? [¶] . . . [¶]
"[Stewart]: I don't recall saying anything to him after he identified [M.J.]
"[Defense counsel]: Isn't it true that after looking at the photograph of [M.J.], you had [the Spanish language translator] translate [']if he sees him, he can point it out to me; if he doesn't, that's fine, too.[']
"[Stewart]: I don't recall, sir. [¶] . . . [¶]
"[Defense counsel]: What's the procedure when you're showing a six-pack lineup?
"[Stewart]: We usually show the photographs one by one, give them as much time as they need to review the photographs, and if they identify somebody, they identify somebody; if they don't, then that's the end of it.
"[Defense counsel]: Is it proper protocol to avoid specifically asking them about specific photographs while they're reviewing the six-pack?
"[Stewart]: We do try to avoid that, yes."
At defense counsel's request, a recording of W.R.'s pretrial identification was also admitted. That recording shows that, before viewing any photographs, W.R. was given the standard admonishment that he was "not obligated to identify anyone" and that "[t]he person who committed the crime may or may not be shown," he acknowledged receiving the admonishment, and was told he would view a series of photographs "in random order." After W.R. viewed the second photograph and began to hand it back to Stewart, she said, "If he sees him, he can point it out to me, and if he doesn't, that's fine too." W.R. then immediately selected the second photograph, which shows M.J. with his lips closed. W.R. reviewed the rest of the photographs without comment.
M.J.'s defense was mistaken identity. Richmond Police Officer Sean Radetich, who responded to the scene of the robbery, testified regarding the suspect descriptions originally given by W.R., R.A., and David. Although Radetich remembered W.R. stating at least two suspects may have attended his high school, Radetich did not recall anyone mentioning gold teeth. W.R. and R.A. told Radetich that "Suspect 1," the individual who displayed a firearm, was a Black male, 19 to 22 years old, approximately five feet 10 inches tall and 190 pounds, wearing a black jacket and black pants. R.A. described "Suspect 2" as a Black male, 17 to 20 years old, five feet nine inches tall and about 200 pounds, wearing a black and green hooded jacket with green trim. R.A. could not provide a description of "Suspect 3," explaining that he primarily spoke with Suspect 1 and did not get a "good look" at Suspects 2 or 3. W.R. described Suspect 3 as a 19- to 20-year-old Black male, with a thin face, wearing a dark hooded jacket with green trim and some type of design.
M.J.'s girlfriend testified she was with M.J. on the afternoon of April 27, 2015. After her school in Berkeley dismissed students at 3:30 p.m., she had taken three buses and met M.J. in front of his Richmond house. She acknowledged she was not sure when she arrived at M.J.'s house and had to wait while transferring buses.
At the conclusion of evidence, the juvenile court rejected M.J.'s alibi defense, stating "[t]he timetables don't work," sustained all three counts, and found the enhancement allegations true. In doing so, the juvenile court specifically found: "With regard to the objection . . . to the photo lineup, the admonition was given. The Court does not find that it's unnecessarily suggestive." At disposition, the juvenile court continued M.J. as a ward of the court and ordered his commitment to Division of Juvenile Justice for a term not to exceed 11 years eight months. M.J. filed a timely notice of appeal.
II. DISCUSSION
The sole issue on appeal is whether W.R.'s pretrial identification was unreliable and tainted his in-court identification. M.J. contends the admission of W.R.'s identifications violated his due process rights. Anticipating the People's argument that his averment of error was forfeited, M.J. also maintains his defense counsel was ineffective. M.J. contends, "even if [defense] counsel believed an objection would be overruled, it was his responsibility to preserve it for review on appeal." Neither contention has merit.
Initially, we address the People's contention M.J. forfeited any evidentiary challenge by failing to file a pretrial motion to suppress or make an objection to the identification evidence at the jurisdiction hearing. Although a defendant's failure to assert a timely challenge to an identification may result in a forfeiture (People v. Cunningham (2001) 25 Cal.4th 926, 989), we will assume M.J.'s evidentiary claim was not forfeited. Despite defense counsel's failure to explicitly request the juvenile court strike or exclude any evidence of W.R.'s in-court or pretrial identifications, defense counsel raised the issue both in his preliminary statement and closing argument to the court, and he created an extensive record of the identification procedure used through his cross-examination of Stewart and admission of the recording of the pretrial identification. Most importantly, the juvenile court explicitly ruled on the suggestiveness issue at the conclusion of the jurisdictional hearing. Accordingly, we proceed to the merits.
"We independently review 'a trial court's ruling that a pretrial identification procedure was not unduly suggestive.' " (People v. Avila (2009) 46 Cal.4th 680, 698-699.) "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. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 114; Neil v. Biggers (1972) 409 U.S. 188, 199-200; [citations].) [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] 'The question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
A due process violation occurs only if the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968) 390 U.S. 377, 384.) In other words, an identification should be suppressed only when the "indicators of [a witness's] ability to make an accurate identification" are "outweighed by the corrupting effect of the challenged identification itself." (Manson v. Brathwaite, supra, 432 U.S. at p. 116.) "Short of that point, such evidence is for the jury to weigh." (Ibid.; People v. Arias (1996) 13 Cal.4th 92, 170.) "If the trial court determines that the pretrial identification procedure was unfair, then the evidence admissibility hearing must continue, to explore . . . whether the in-court identification will be the product of a source independent of the unfair pretrial identification procedure, in order that the 'taint' of that procedure is removed." (People v. Rodriguez (1977) 68 Cal.App.3d 874, 881.) In that situation, "[t]he burden is placed upon the prosecution to establish the independent source of in-court identification by 'clear and convincing evidence.' " (Ibid.)
M.J. has not met his burden "of showing unfairness as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) He relies on Stewart's statement ("If he sees him, he can point it out to me, and if he doesn't, that's fine too"), asserting that the timing drew attention to M.J.'s photograph. M.J. maintains the fact this instruction was given when W.R. finished viewing M.J.'s photograph, "was the equivalent of drawing a circle around his picture." " '[A] procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' " (People v. Pervoe (1984) 161 Cal.App.3d 342, 358.) However, "[t]elling a witness suspects are in custody or questioning a witness further if the officer believes the witness actually recognized someone in the lineup is not impermissible." (People v. Contreras (1993) 17 Cal.App.4th 813, 820; People v. Perkins (1986) 184 Cal.App.3d 583, 590.)
M.J. misplaces his reliance on People v. Perkins, supra, 184 Cal.App.3d 583. In that case, a robbery victim did not identify anyone after viewing a physical lineup. Thereafter, a police officer asked her if anyone in the lineup "closely resembled" one of the robbers. The victim said she recognized one of the men, but did not positively identify him because she could not see distinctive tattoos on his neck. When she told the officer she needed to see the tattoos, the officer informed her that the same man she recognized had the distinctive tattoos. (Id. at pp. 587, 589, 590.) On review, the Fifth Appellate District recognized: "Suggestive comments or conduct that single out certain suspects or otherwise focus a witness's attention on a certain person in a lineup can cause such unfairness so as to deprive a defendant of due process of law." (Id. at p. 588.) Nonetheless, the court concluded, "it was not impermissible for [the officer] to tell [the victim] that Perkins had such markings." (Id. at p. 589.) The reviewing court also determined the officer's follow-up question was not suggestive because it "did not indicate in any way that Perkins was a suspect." (Id. at p. 590.) "To the extent that [the officer's] question conceivably conveyed some suggestiveness, it does not appear that it rose to the level of unconstitutionally tainting [the victim's] identification. No identification can be completely insulated from risk from suggestion. [Citation.] In this case, it was sufficient that the jury could weigh the credibility of [the victim's] identification." (Ibid.)
Here, Stewart's repeated admonition was far more innocuous. Stewart merely repeated a neutral admonition that W.R. should identify the person who committed the crime, if shown; Stewart did not suggest W.R. should select any particular photograph. (See People v. Arias, supra, 13 Cal.4th at pp. 169-170 [content of similar admonition, given at beginning of lineup, not suggestive].) It would be speculative to assume the timing of the officer's remark alone suggested to W.R. the identity of the person the police suspected, especially because W.R. had already recognized M.J. at school. Because we conclude the photographic lineup was not unduly suggestive, it is unnecessary to decide whether the in-court identification was reliable despite the suggestiveness. (People v. DeSantis, supra, 2 Cal.4th at p. 1224, fn. 8.)
Even if we assume the timing of Stewart's repeated admonishment to W.R. was unduly suggestive, we would conclude W.R.'s identification was reliable under the totality of the circumstances. "[T]here must be a 'substantial likelihood of irreparable misidentification' under the ' " 'totality of the circumstances' " ' to warrant reversal of a conviction on this ground." (People v. Cunningham, supra, 25 Cal.4th at p. 990.) Here, there may be some evidence that W.R. conferred with the other robbery victims before he identified M.J., but this circumstance, combined with Stewart's conduct, does not render his identification violative of due process.
Prior to examining the photographs, W.R. was instructed that he was not to assume the person who committed the crime was pictured therein, that it was equally important to exonerate the innocent, and that he had no obligation to identify anyone. W.R. had several minutes to view at least part of Suspect 3's face during the robbery, which occurred in broad daylight. W.R., unlike R.A., interacted directly with Suspect 3 during the robbery. W.R.'s initial description of Suspect 3 appears generally consistent with how M.J. appeared in court. At the jurisdiction hearing, M.J. did not have any gold on his teeth, which W.R. had previously recognized when he saw M.J. at school. However, the significance of this discrepancy is lessened by W.R.'s testimony that the gold teeth he described were removable. And contrary to M.J.'s assertion, this was not the sole basis for W.R.'s identification. Most importantly, before seeing any photographic lineup, W.R. saw M.J. at school and recognized him as having been involved in the robbery. Nothing in the record indicates W.R. was uncertain in his identification. M.J. has not met his burden of establishing unreliability under the totality of the circumstances.
M.J. argues psychological studies suggest this factor is irrelevant. However, our Supreme Court has recently "reiterated the propriety of including this factor" in reliability assessments of witness identifications. (People v. Sanchez (2016) 63 Cal.4th 411, 462.) --------
The court did not err in determining the photographic lineup was not unduly suggestive. Thus, the prosecution was not compelled to establish an independent basis for the in-court identification and W.R.'s identification testimony was properly admitted. Any doubts concerning W.R.'s identification went to the evidence's weight, not its admissibility.
Even if defense counsel had filed a suppression motion, as M.J. insists he should have, the trial court would have been correct to deny it. Thus, even if M.J.'s evidentiary claim was forfeited, trial counsel cannot be found ineffective for failing to file an unmeritorious motion. (See Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [reversal is warranted only if appellant proves a reasonable probability that, but for counsel's deficient performance, he would have achieved a different result]; People v. Kipp (1998) 18 Cal.4th 349, 366 [if "[the] defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient"].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.