In re C.P. CA2/4 ( 2013 )

Filed 12/18/13 In re C.P. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re C.P., A Person Coming Under the
Juvenile Court Law.
B245097
THE PEOPLE, (Los Angeles County
Super. Ct. No. YJ36750)
Plaintiff and Respondent,
v.
C.P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Charles
R. Scarlett, Judge. Affirmed.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
The juvenile court sustained a petition alleging that appellant C.P. engaged
in robbery, attempted robbery, and assault and battery. He contends there is
insufficient evidence to support these determinations. We reject his contention and
affirm.
RELEVANT PROCEDURAL BACKGROUND
On July 5, 2012, a petition was filed under Welfare and Institutions Code
section 602, charging appellant, a minor born in 1996, with second degree robbery
(count 1; Pen. Code, § 211), attempted second degree robbery (count 2; Pen. Code,
§§ 221, 664), and assault and battery (count 3; Pen. Code, § 242). Following a
contested adjudication hearing, the juvenile court sustained the petition, and
declared him to be a ward of the court. After determining the robbery-related
charges to be felonies and the remaining charge to be a misdemeanor, the court
ordered appellant placed in a community camp, and set his maximum term of
confinement at five years and ten months. This appeal followed.
FACTUAL BACKGROUND
A. Prosecution Evidence
On July 2, 2012, at approximately 11:45 a.m., Jorge Villa and Melissa
Romero were walking on Nectarine Street in Inglewood. As they approached Ash
Avenue, Villa heard appellant behind him and turned around. Appellant grabbed
Villa’s neck, pointed a gun at him, and said, “Give me what you have.”1 When
appellant reached into Villa’s right pocket, Villa tried to push appellant away. In
response, appellant held onto Villa’s backpack strap, hit Villa’s head several times
1 Villa testified that during the incident, he came to believe that appellant’s gun was
a BB gun because it rattled and seemed relatively light in weight.
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with his gun, and ran away. According to Villa, appellant was wearing a black
sweater during the incident.
Later, at approximately 12:14 p.m., Maria Villalpando was walking near the
intersection of Kelso and Oak Streets in Inglewood. Appellant approached her,
pointed a black gun at her head, and said, “Give me. Give me.” Appellant then
pulled a necklace off Villalpando’s neck and fled. Villalpando noticed that
appellant was wearing a gray t-shirt.
In response to a call regarding a person with a gun, Inglewood Police Officer
Steve Romero was driving along Oak Street when he saw an African-American
male running from Villalpando. Romero stopped his patrol car and requested
backup to establish a containment area.
Los Angeles County Sheriff’s Department Deputy Sheriff Adam Stoll, a
police dog handler, searched the containment area with his dog. While Stoll
conducted the search, a public address system made pre-recorded announcements
notifying residents of the presence of a police dog. Stoll’s dog discovered
appellant behind some trash cans, approximately 80 to 100 feet from the location
of Villalpando’s robbery. Appellant was shirtless and appeared to have been
crouching behind the trash cans. Stoll ordered his dog to release appellant, whom
Stoll detained. Nearby, investigating officers found a black t-shirt, a black gun,
and a necklace.
After 2:00 p.m., following appellant’s detention, investigating officers drove
Villalpando to view appellant. According to Villalpando, upon arriving at
appellant’s location, she remained in the patrol car, which was parked
approximately 40 feet from appellant. Appellant was handcuffed and standing
with his back toward her. When appellant turned around, she recognized and
identified him as the person who took her necklace. The officers then showed
Villalpando a necklace, which she identified as her own.
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The officers also drove Villa to appellant’s location for a field showup.
Before Villa looked at appellant, an officer told Villa not to make an identification
unless the person displayed was Villa’s assailant. Villa remained seated in the
patrol car while he was shown appellant, who was shirtless, handcuffed, and
approximately 40 feet from the vehicle. Villa identified appellant as the person
who hit him with a gun and tried to rob him.
B. Defense Evidence
Appellant, who testified on his own behalf, denied that he engaged in any
misconduct regarding Villa and Villalpando. According to appellant, at the time of
the underlying incidents, he was in the tenth grade, and took special education
classes. On July 2, 2012, he attended a summer school class until noon. After
leaving school, he walked toward a friend’s house. When a boy carrying a gun
demanded the contents of appellant’s pockets, he fled and hid behind some trash
cans. Later, after a police dog found appellant, police officers detained him.
According to appellant, while he hid, he heard no public announcements regarding
a police dog, and did not notice the gun and necklace near him.
Mychelle Hernandez, a defense investigator, testified that she interviewed
Villalpando, who described her assailant as an African-American male between the
ages of 18 and 20. According to Hernandez, Villalpando stated that before she
viewed appellant during the field show up, the investigating officers said that the
person she would see had possessed her necklace chain. Hernandez also stated that
Villalpando had claimed there was an age difference between her assailant and
appellant, and that she had identified appellant as her assailant because he had been
detained.
Inglewood Police Officer Jesse Guizar testified that he and his partner wrote
a report regarding their role in the investigation of Villa’s robbery. According to
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the report, a witness to the robbery told Guizar’s partner that Villa’s assailant ran
north from the scene of the crime and drove away in a gray car.
Mitchell Eisen, a psychologist, testified regarding factors that affect the
memories of eyewitnesses. According to Eisen, a witness’s ability to identify an
individual is diminished by suggestive statements, delays in making the
identification, stress, and other circumstances. In addition, witnesses often find it
difficult to identify a person of a different race. Eisen further opined that
photographic “6-pack[s]” result in more reliable identifications than field showups
involving a single suspect, especially when the witness receives no admonition that
the presentation of a single individual does not signal that person’s guilt.
DISCUSSION
Appellant contends the evidence was insufficient to prove he was the person
who assaulted and battered Villa while attempting to rob him, and who later
robbed Villalpando. We disagree.2 “[A]bsent physical impossibility or inherent
improbability, the testimony of a single eyewitness is sufficient to support a
criminal conviction. [Citation.]” (People v. Allen (1985) 165 Cal.App.3d 616,
623.) Here, Villa and Villalpando positively identified appellant as their assailant
2 “‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)
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shortly after the incidents and during the evidentiary hearing. Their testimony was
further corroborated by the circumstances surrounding appellant’s arrest, including
the presence of Villalpando’s necklace and a gun near appellant’s hiding place. On
this evidence, the juvenile court could properly conclude that it was appellant who
committed the offenses against Villa and Villalpando.
Pointing to Eisen’s expert testimony, appellant maintains that reliance upon
the field showup identifications to establish his guilt constitutes a denial of due
process. The crux of his contention is that the field showups involved unreliable or
unduly suggestive procedures. Appellant argues that Villalpando and Villa had
only a limited opportunity to view their assailant, due to the brevity of the incidents
and distractions that occurred during them; that the showups occurred two or more
hours after the crimes; that neither Villalpando nor Villa received adequate
admonitions before the showups; and that the showups involved cross-racial
identifications.
Appellant has forfeited his contention regarding the field showup
identifications, as he never sought to exclude that evidence before the trial court.
Generally, to preserve an issue on appeal regarding the admission of evidence, a
party must comply with Evidence Code section 353, which requires “an objection
. . . so stated as to make clear the specific ground of the objection . . . .” (Evid.
Code § 353, subd. (a).) This requirement encompasses objections based on due
process. (People v. Williams (2008) 43 Cal.4th 584, 625.)
Pointing to Chief Justice Bird’s concurring and dissenting opinion in People
v. Frank (1985) 38 Cal.3d 711 (Frank), appellant suggests that his failure to object
did not work a forfeiture. We disagree. In Frank, a capital case, the defendant
challenged the admission of certain evidence as the product of an unlawful search
and seizure. (Id. at p. 722.) Although his contention on appeal relied on a ground
not clearly presented to the trial court, a plurality of the Supreme Court justices
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concluded that it was appropriate to address the contention on the merits, stating:
“[W]hile in a noncapital case a claim of erroneous admission of evidence will not
be reviewed in the absence of a timely and proper objection [citation], we have
long followed a different rule in capital cases. On an appeal from a judgment
imposing the penalty of death, a technical insufficiency in the form of an objection
will be disregarded and the entire record will be examine [sic] to determine if a
miscarriage of justice resulted.” (Id. at p. 729, fn. 3.) In a separate concurring and
dissenting opinion, Chief Justice Bird agreed with that portion of the plurality
opinion, noting that the Assembly Judiciary Committee Comment to Evidence
Code section 353 contemplated an exception to the objection requirement when the
erroneous admission of evidence results in a denial of due process. (Frank, supra,
38 Cal.3d at p. 737.)
As the Frank exception to the forfeiture rule is operative only in capital
cases, it is inapplicable here. Moreover, we observe that even in capital cases, our
Supreme Court has repeatedly declined to invoke the exception when the defendant
asserted no objection to the pertinent evidence. (People v. Williams (1997) 16
Cal.4th 153, 208-209; People v. Zapien (1993) 4 Cal.4th 929, 979-980.)
Accordingly, under the circumstances present here, appellant has forfeited his
contention.
Moreover, even had appellant preserved his contention for appeal, we would
conclude that the identification evidence was properly admitted. Generally, “‘[t]he
“single person showup” is not inherently unfair.’” (People v. Ochoa (1998) 19
Cal.4th 353, 413, quoting People v. Floyd (1970) 1 Cal.3d 694, 714.)3 “[T]he law
3 Our Supreme Court has explained: “‘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
(Fn. continued on next page.)
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favors field identification measures when in close proximity in time and place to
the scene of the crime,” as the potential unfairness in such measures is ordinarily
“‘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.’” (In re Richard W. (1979) 91 Cal.App.3d 960, 965-967, 970, quoting
People v. Anthony (1970) 7 Cal.App.3d 751, 764-765.) Numerous courts have
approved field showup procedures similar to those employed here. (E.g., People v.
Anthony, supra, 7 Cal.App.3d at p. 764 [witness was shown defendant, who was
handcuffed and seated in police car]; People v. Colgain (1969) 276 Cal.App.2d
118, 122 [victim was shown defendant, who was handcuffed and standing next to
police car]; People v. Burns (1969) 270 Cal.App.2d 238, 243-244 (Burns) [victim
was shown defendant, who stood near his own car, surrounded by police
vehicles].)
Furthermore, the circumstances surrounding the field showups, viewed in
the light most favorable to the judgment, establish no denial of due process. (See
People v. Thomas (2012) 54 Cal.4th 908, 930-931 [trial court’s factual findings
regarding identification procedures are subject to deferential review on appeal].)
Although the crimes were completed in a minute or less, Villalpando and Villa
each testified that they looked directly at their assailant’s face. (People v. Flint
(1986) 180 Cal.App.3d 13, 18-19 [approving field showup, even though witness
had only brief and partial view of burglar].) The two-to-three hour delay between
the crimes and the showups did not render the identification procedure unreliable.
opportunity of the witness to view the criminal at the time of the crime, the witness’s
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, supra, 19 Cal.4th at p. 412.)
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(People v. Rodriguez (1987) 196 Cal.App.3d 1041 [approving field showups that
occurred approximately nine hours after crimes].) Nor was either the absence of
full pre-identification admonitions or the presence of cross-racial identifications a
fatal defect. (See Burns, supra, 270 Cal.App.2d at pp. 245-246 [approving field
showup, even though prior to the showup, witness overheard defendant described
as “suspect” by officers, who otherwise did not discuss the pending possible
identification with witness]; People v. Mohamed (2011) 201 Cal.App.4th 515, 520-
523 [field showup identifications constituted substantial evidence to support
criminal conviction, even though they involved cross-racial identifications].)4
Appellant directs our attention to evidence that officers made suggestive
remarks to Villalpando before the field showup, and that Villalpando may have
lacked the ability to make a cross-racial identification. Regarding these matters,
the defense investigator testified that Villalpando told her that during the field
showup, an officer presented appellant to her as “the person who took the chain.”
Furthermore, when defense counsel asked Villalpando whether she expressed any
doubts regarding her field identification to the defense investigator, Villalpando
4 Pointing to Meza v. City of Los Angeles (C.D. Cal., May 26, 2009) 2009 U.S. Dist.
LEXIS 43979 (Meza), appellant suggests that a field showup results in a denial of due
process unless the witness is admonished he is a “‘possible suspect only,’” that his
presence in custody “‘does not indicate guilt or innocence,’” and that “‘the purpose of the
[showup] is either to eliminate or identify the person as the perpetrator.’” That
proposition, however, finds no support from Meza. There, the plaintiff asserted federal
civil rights claims arising out of his arrest for second-degree robbery, which followed two
field showups. (Meza, supra, at *2-*7.) In granting summary judgment on those claims,
the trial court concluded that the field showups were not unduly suggestive, even though
the witness received no admonition prior to the first showup. (Id. at *16-*17.) The court
stated: “Although a proper pre-identification admonition does weigh in favor of
reliability, [p]laintiff provides no caselaw suggesting that a failure to give this admonition
is per se evidence of unreliability.” (Id. at *18.)
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replied, “No. [The investigator] asked me if I was sure about what I was saying.
And I said, Yes, because all of them look the same. And, well[,] all the latinos
look the same.”
Although these aspects of the trial evidence may suggest inferences that
challenge Villalpando’s identification testimony, they do not render that testimony
insufficient to support appellant’s conviction. As our Supreme Court has
explained, “[t]o warrant the rejection of the statements given by a witness who has
been believed by [the fact finder], there must exist either a physical impossibility
that they are true, or their falsity must be apparent without resorting to inferences
or deductions. [Citations.] Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination depends. [Citation.]”
(People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on another ground in
People v. Burton (1961) 55 Cal.2d 328, 352.)
Here, the evidence upon which appellant relies does not meet the demanding
standards for rejecting a witness’s testimony. Regarding the possibility that an
officer made suggestive remarks to Villalpando prior to the field showup,
Villalpando testified that she first saw her necklace only after she identified
appellant during the showup, and that the officer who displayed it to her said that it
had been found in a yard. Furthermore, regarding Villalpando’s remarks that “all
of them” and “all the latinos” look the same, we note that what Villalpando
intended to say is unclear, as she made the remarks while explaining why she had
no doubts regarding her identification. Neither defense counsel nor the prosecutor
asked Villalpando to clarify the remarks, even though she testified through a
translator because she speaks only Spanish. For this reason, the record does not
clearly establish the relevance of the remarks to Villalpando’s ability to make a
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cross-racial identification of an African-American assailant. We decline to
substitute our judgment for that of the juvenile court regarding that ability. In sum,
there was sufficient evidence to support the juvenile court’s determinations.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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