In re A.H. CA4/2

Filed 9/12/14 In re A.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E059883
Plaintiff and Respondent,
(Super.Ct.No. J250890)
v.
OPINION
A.H.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Kyle D. Smith, under appointment by the Court of Appeal, and A.H., in pro. per.,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
The juvenile court sustained allegations defendant and appellant A.H. (minor)
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committed first degree robbery (count 1; Pen. Code, § 211)1 and first degree burglary
while the victim was present (count 2; § 459). The court declared minor a ward of the
court and released minor to the custody of his mother on probation.
After defendant’s trial, counsel filed the notice of appeal; this court appointed
counsel to represent defendant. Counsel has filed a brief under the authority of People v.
Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth
a statement of the case, a statement of the facts, and identifying three potentially arguable
issues: 1) whether trial counsel committed prejudicial ineffective assistance of counsel
(IAC) in failing to preserve for appellate review the issue of whether the infield showup
of minor was unduly suggestive such that it should have been suppressed from the
evidence adduced at the jurisdictional hearing; 2) whether the infield showup of minor
was violative of minor’s constitutional rights to due process; and 3) whether sufficient
evidence supports the juvenile court’s true findings on the allegations. Defendant was
offered the opportunity to file a personal supplemental brief, which he has done. In his
brief, defendant argues his trial counsel rendered unspecified acts of prejudicial IAC and
that minor was not the perpetrator of the offenses. We affirm.
FACTS HISTORY
On August 21, 2013, at approximately 9:30 p.m., the victim, who is deaf, was
lying on her bed using her cell phone to communicate with her boyfriend both by text and
1 All further statutory references are to the Penal Code.
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by sign language utilizing FaceTime. She felt something coming from the window where
she turned to see minor’s face. “I saw his face clearly.” The victim recognized minor
immediately. Minor had removed the window screen and crawled into her bedroom
through the window. He then reached and grabbed the victim’s cell phone out of her
hands. She yelled at minor who immediately left. Her boyfriend called the police.
The victim had previously seen minor regularly on numerous occasions in and
around her apartment complex riding his bike, playing basketball, and playing with his
friends: “I have seen him lots of times.” She knew he lived somewhere near the back of
the apartment complex. The victim did not know minor’s name, so she communicated
his description to her daughter who immediately knew who he was and where he lived.
Rialto Police Officer Joseph Maltese was dispatched to the apartment complex
around 9:30 p.m. that night. The victim communicated with him that night using her
daughter as an interpreter. She told the police what had happened and gave them a
description of minor. The victim’s daughter showed Maltese the location of minor’s
apartment.
Maltese spoke with minor’s mother who allowed officers to search the apartment.
“There were cell phones all over the place and that apartment was a mess. It was like
[looking for] a needle in a haystack.” “They had cell phones everywhere.” After about
10 minutes, the officers gave up looking for the victim’s cell phone.
Minor’s mother informed Maltese minor had been with her all night. However,
she had allowed him to go out alone to the mailbox that night to get the mail. Minor’s
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mother testified minor had been with her the entire night; they had gone to a football
game leaving at 9:30 p.m., after which they went to Taco Bell.
Maltese transported the victim to minor’s apartment. He told “her that we had to
do an infield showup. I explained to her that the person . . . she is going to see may or
may not be the one who committed the crime. Just because he is detained doesn’t mean
that’s the one who committed the crime.” Maltese did not put any pressure on the victim
to identify minor as the perpetrator. He shone a spotlight on minor. The victim identified
minor as the perpetrator.
The victim testified there was no doubt that the person she identified was the
person who took her phone: “I have always known who it was.” Maltese testified the
victim “knew exactly who it was.” She indicated she was 100 percent sure minor was the
perpetrator. Maltese did not conduct a lineup because the victim and her daughter had
named minor as the perpetrator. The victim identified minor in court as the perpetrator.
The victim received her phone back the next day from minor’s mother’s friend.
The phone was damaged, data had been deleted, and the cover was missing.
DISCUSSION
Minor contends his attorney failed to provide adequate legal representation, but
fails to exposit anything his attorney did improperly. Minor additionally argues he was
not the perpetrator.
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
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the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] . . . “[I]f the circumstances reasonably justify the [judge’s] findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility.’ [Citation.] . . . Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a single witness is sufficient
to support a conviction.’ [Citations.]” (People v. Brown (2014) 59 Cal.4th 86, 106.)
Here, the victim testified she was “[v]ery, very close” to minor when he took her
phone. She said she “[saw] him clearly.” The victim recognized him immediately. She
had seen him on numerous prior occasions in the apartment complex: “I have seen him
lots of times.” She knew he lived in the back of the apartment complex.
The victim identified minor to Maltese at the infield showup. She testified there is
no doubt minor was the person who took her phone. Maltese testified the victim was 100
percent sure minor was the perpetrator. The victim identified minor as the perpetrator in
court. The juvenile court obviously credited the victim’s testimony. Thus, there was
sufficient evidence to support the juvenile court’s conclusion that minor was the
individual who committed the alleged offenses.
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Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent
review of the record and find no arguable issues. (People v. Vines (2011) 51 Cal.4th 830,
875-876 [Reviewing courts defer to counsel’s tactical decisions in examining claims of
IAC and there is a strong presumption counsel’s conduct falls within the range of
reasonable assistance.]; People v. Ochoa (1998) 19 Cal.4th 353, 413 [“‘The “single
person showup” is not inherently unfair.’ [Citation.] [F]or a witness identification
procedure to violate the due process clauses, the state must, at the threshold, improperly
suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an
unduly suggestive procedure.”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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