IN RE: F.A.

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Court of Appeal, Fifth District, California.

IN RE: F.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. F.A., Defendant and Appellant.

F062191

Decided: October 20, 2011

 * APPEAL from a judgment of the Superior Court of Kern County.   Jon Edward Stuebbe, Judge.   Kristen Elizabeth Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

The court readjudged appellant, F.A., a ward of the court (Welf. & Inst.Code, § 602) after it sustained allegations in a petition charging appellant with second degree robbery (count 1/Pen.Code, § 212.5, subd. (c)),1 misdemeanor battery (count 2/Pen.Code, § 243, subd. (a)), and violating his probation (count 3/Welf.   & Inst.Code, §§ 602 & 777, subd. (a)(2)).

On March 24, 2011, the court aggregated time from previous petitions, set appellant's maximum term of confinement at five years eight months, and committed him to the Kern Crossroads Facility.

On appeal, appellant contends:  1) the court erred when it denied his motion to suppress the victim's in-field identification of him;  and 2) the evidence is insufficient to sustain the court's true findings.   We will affirm.

At appellant's jurisdictional hearing, Jose Aguilar testified that on February 12, 2011, just before midnight, he was walking to a Fastrip Market in Bakersfield to buy cigarettes when he saw six people, five males and one female, standing on the corner of Niles Street and Palm Avenue.   As he walked toward the group, someone asked if he had any cigarettes.   Aguilar replied he did not and that he was on his way to buy some.   Aguilar also spoke face-to-face with one male whom he identified in court as appellant.   Aguilar greeted appellant and told appellant his name, in an attempt to befriend him, because Aguilar did not want any problems.   Someone in the group told Aguilar, “Give me the money” and Aguilar gave that person $5 because he felt threatened.   Appellant then told Aguilar to give him the chain Aguilar was wearing.   When Aguilar did not, three members of the group, including appellant, counted off, “One, two, three” and simultaneously hit Aguilar, knocking him to the ground.   The trio hit and kicked Aguilar until the sound of a helicopter in the sky caused them to run away.   However, they were not able to take Aguilar's chain from him.   Although it was dark, Aguilar was able to see appellant's face during the confrontation because he spoke face-to-face with appellant and appellant was the one who began hitting him.

Approximately three minutes after the assailants ran off, a sheriff's deputy arrived on the scene.   Eventually two deputies took Aguilar to a location approximately one block away, where he saw appellant get out of a patrol car in handcuffs.   From a distance of approximately 15 to 20 yards, Aguilar identified appellant as one of the robbers.   During cross-examination, Aguilar testified that the robbery occurred in the alley, which was dark, and that he saw the robbers a total of five minutes.   He told the deputies he could not describe, or give the race of, any of the people who attacked him.   He also told them that four people attacked him, three males and one female.   Aguilar could not give a description of the other robbers in court.   Aguilar identified appellant in open court as one of the robbers.

Kern County Sheriff's Deputy Andrew Romanini testified that on February 12, 2011, at approximately 11:45 p.m., he responded to the area where Aguilar had been assaulted and robbed.   When Romanini arrived there, Aguilar was walking out of an alley located south of the intersection of Niles Street and Palm Avenue and he had cuts and bruises on his face.   Romanini took Aguilar to a location half a block away where he spoke to him for 5–10 minutes with the assistance of a Spanish-speaking deputy.   He then took Aguilar to a location a half a block away where some subjects had been detained.   Romanini parked 15 to 20 yards away from a patrol car in which appellant was seated and used the spotlight on his patrol car to illuminate appellant as appellant was taken out of the patrol car and stood outside.   Aguilar was asked if he could identify appellant and a second detained person.   Aguilar identified appellant and the second detained person as two of the robbers.

During a post-arrest interview, Deputy Romanini asked appellant if he knew anyone who could vouch for his whereabouts that night and appellant replied that he did not.

At the conclusion of the prosecution case, the court denied the defense's motion to suppress the victim's in-field identification of appellant.   Ricky A. then testified that he lived a short distance from where the robbery occurred.   On the night of the robbery, Ricky was in the backyard of his house listening to music with appellant, and four other people.   It was still daylight when appellant arrived at Ricky's house.   Appellant did not leave the house until the next morning at 2:00 a.m.

DISCUSSION

The In–Field Identification

Appellant contends the in-field lineup was unduly suggestive and the victim's identification unreliable under the totality of the circumstances.   Thus, according to appellant, the denial of his motion to exclude the victim's identification violated his federal and state constitutional rights.   Appellant further contends that the court's error in admitting the identification was prejudicial because it tainted his in-court identification and the prosecution did not present any independent evidence establishing that appellant was one of the robbers.   We will reject these contentions.

Implicit in the in-field identification process is the singling out of the suspect.   It is recognized that:

“[T]his inherent singling out constitutes an element of suggestiveness in the single subject confrontation.  [Citations.]  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.   Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness.   The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.  [Citations.]”  (People v. Anthony (1970) 7 Cal.App.3d 751, 764–765.)

“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.  [Citations.]

“The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.  [Citations.]  [¶] Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the circumstances' ” ’ to warrant reversal of a conviction on this ground.  [Citation.]”  (People v. Cunningham (2001) 25 Cal.4th 926, 989–990.)

“ ‘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.)

Appellant contends that the in-field lineup was unduly suggestive because he was shown to the victim as he exited a marked patrol car in handcuffs and he was illuminated with a spotlight.   He further contends that the officers could have conducted the in-field lineup in a fairer manner if they had presented him without handcuffs, on the street instead of a patrol car, and if they had illuminated him with a flashlight instead of a spotlight.   We disagree.

The in-field identification was justified here in large part because an identification within a half hour of the robbery was more likely to be accurate than a belated identification days or weeks later and in order to quickly determine whether appellant may or may not have been involved in robbing the victim.   Further, since appellant was a suspect in a violent robbery during which the victim was beaten, the officers were justified, for safety reasons, in holding appellant in a patrol car prior to the in-field lineup and keeping him handcuffed during the procedure.   Additionally, the use of a spotlight, instead of a flashlight, to illuminate appellant was more conducive to an accurate identification because it provided better illumination for the victim.   Moreover, many cases have upheld in-field identifications when the suspect is handcuffed in the backseat of a patrol car.  (Cf. In re Richard W. (1979) 91 Cal.App.3d 960, 970;  People v. Craig (1978) 86 Cal.App.3d 905, 914;  People v. Colgain (1969) 276 Cal.App.2d 118, 122, 129;  People v. Smith (1970) 13 Cal.App.3d 897, 909;  People v. Rodriguez (1970) 10 Cal.App.3d 18, 27;  People v. Levine (1969) 276 Cal.App.2d 206, 208.)   Thus, we conclude that the in-field identification procedure employed here was not unduly suggestive.

In any event, the identification was reliable under a totality of the circumstances.

The identification occurred within a half hour of the robbery about a block away from where it occurred.   The victim had the opportunity to get a good view of the face of the robber he identified as appellant while he spoke with him face-to-face in an attempt to befriend him.   During the actual robbery, the victim focused his attention on that robber when the robber initiated the beating of the victim and when he attempted to grab the victim's chain.   Further, the victim provided an alibi that was patently false because he could not have left his friend's house at 2:00 a.m. since he was detained by sheriff's deputies at approximately 12:30 a.m.

Appellant contends that the following circumstances made the victim's identification unreliable:  1) the victim saw the robbers in a dark alley for only five minutes while he was distracted most of the time by the beating he received and by his efforts to prevent his chain from being taken;  2) he was unable to describe his assailants to the officers or in court;  3) there is no evidence regarding his level of certainty when he made the identification;  and 4) the medical expenses resulting from the assault gave the victim a motive to convincingly identify appellant as one of his attackers.   We disagree.

Although the alley was dark and the victim may at times have been distracted, as noted above, the victim spoke face-to-face with the robber whom he identified as appellant for a significant amount of time and he testified that he was able to see that robber's face.   Further, the robbers' ability to see the victim's chain and to strike him simultaneously corroborated the implication of the victim's testimony that there was sufficient ambient light in the alley for him to identify appellant as the robber he spoke with.   Additionally, the inability of the victim to describe the robbers was not unusual given that the alley was dark, the stress to the victim inherent in being robbed and beaten by several people, and the likelihood that the victim focused on the perpetrators' faces and/or actions, not their clothing, as he realized that he was about to be beaten and robbed.

We also reject appellant's claim that the victim had a financial motive to convincingly identify him as one of the robbers, since there is no evidence in the record from the jurisdictional hearing about medical expenses or other economic losses incurred by the victim from this incident.

Additionally, although the victim did not testify regarding the level of certainty of his identification when the in-field lineup was conducted, the trial court found the victim's in-court identification of appellant was “very convincing.”   In any event, appellant had the burden of showing that the identification was unreliable (People v. Sanders (1990) 51 Cal.3d 471, 508) and the record does not indicate that there was any hesitation or uncertainty in the victim's in-field identification of appellant.   Accordingly, we conclude that the court did not err when it denied appellant's motion to exclude the victim's identification.

The Sufficiency of the Evidence Claim

“When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the charged crime or allegation proven beyond a reasonable doubt.  [Citations.]  Stated differently, ‘the 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.]”  (People v. Morehead (2011) 191 Cal.App.4th 765, 777–778.)

Appellant claims that the only evidence implicating him in the robbery and battery of the victim was the victim's in-field identification of him as one of the robbers which the victim repeated in court.   According to appellant, since the in-field identification was inadmissible because it was unreliable and it tainted the victim's in-court identification, the record does not contain any credible evidence that supports his adjudication for robbery, battery, or for violating his probation.   In the previous section we rejected appellant's challenge to the in-field identification procedure used here and to the victim's in-field and in-court identifications.   Further, these identifications were sufficient to support the court's true findings with respect to the petition allegations including the allegation that he violated his probation by committing the charged robbery and battery offenses.  (People v. Hughes (1969) 271 Cal.App.2d 288, 291.) 2

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

FN2. On November 3, 2009, appellant admitted a charge of possession for sale of marijuana (Health & Saf.Code, § 11359) and was placed on probation for a period not to exceed his twenty-first birthday.   His terms and conditions of probation in that matter established a 10:00 p.m. curfew.   The instant petition alleged that appellant violated his probation by committing the robbery and battery offenses and by violating his curfew.   Therefore, the allegation that appellant violated his probation was independently supported by the evidence that appellant violated his curfew by being out on the street at approximately 12:30 a.m. the night he was detained in this matter..  FN2. On November 3, 2009, appellant admitted a charge of possession for sale of marijuana (Health & Saf.Code, § 11359) and was placed on probation for a period not to exceed his twenty-first birthday.   His terms and conditions of probation in that matter established a 10:00 p.m. curfew.   The instant petition alleged that appellant violated his probation by committing the robbery and battery offenses and by violating his curfew.   Therefore, the allegation that appellant violated his probation was independently supported by the evidence that appellant violated his curfew by being out on the street at approximately 12:30 a.m. the night he was detained in this matter.

THE COURT