In re Andrew W.

 

 

 

 

 

 

 

 

 

Filed 6/13/13  In re Andrew W. CA3

 

 

 

 

NOT TO BE PUBLISHED

 

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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

(San Joaquin>)

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>

In re ANDREW W., a Person Coming Under the Juvenile Court Law.	C071711   (Super. Ct. No. 69202)
THE PEOPLE,                           Plaintiff and Respondent,               v.   ANDREW W.,                           Defendant and Appellant.

 

 

 

 

            Following
a contested jurisdictional hearing,
the juvenile court sustained a delinquency petition alleging the minor Andrew
W. had committed first degree burglary (Pen. Code, § 459).  The juvenile court declared the minor a ward
of the court and placed him on probation. 


            On
appeal, the minor contends there is insufficient
evidence to support the jurisdictional finding, and trial counsel was
ineffective for failing to object to the pretrial identification
procedure.  We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            On the
afternoon of April 24, 2011,
Veronica Lara, her brother, her three children, and her husband, Henry Barajas,
left their apartment to attend Easter dinner. 
The door was locked when they left, but the apartment had a broken
window. 

            Lara and
her family left  to return home at around
9:30 p.m. that night.  As the car approached the apartment
building’s gate, Lara, the driver, observed three males walking out of the
apartment.  Barajas, seated in the
passenger seat, testified that the males were about 10 feet away from him.  The three males were carrying belongings from
the apartment underneath their clothes. 
Lara recognized one of the three males as her brother’s friend George,
who had visited her apartment that week. 
She did not know his last name. 
George was carrying an Xbox, which was sticking out under his jacket, as
he walked out the apartment’s front door. 
The minor was carrying Lara’s tattoo gun and another minor,
Antonio J., was carrying a laptop. 
All three headed to the apartments across the street.  Lara later determined that Xbox controllers,
a camera, a camera recorder, an iPod, and phones were also taken from the
apartment. 

            Lara and
Barajas only recognized George at the scene of the burglary.  After the burglary, Lara learned that George
had a brother, whom she later identified as Antonio J.  She also saw Antonio J.’s photograph on
Facebook.  Lara identified the minor and
Antonio J. as the other two burglars at a field lineup and at trial.  At trial, Barajas also identified the minor
and Antonio J. as the other two burglars. 


            Two days
after the burglary, Lara and Barajas saw Antonio walking in their
neighborhood.  Barajas asked Antonio,
“Where’s my stuff?”  Antonio admitted
participating in the burglary, saying no one could do anything to him.  Lara and Barajas learned where Antonio lived
and called the police. 

            An
officer went to Antonio J.’s residence with Lara, where she pointed out Antonio
as he was walking on the sidewalk.  The
officer contacted Antonio at his residence; the minor was also in the
residence, as were his two brothers.  The
officer then conducted an in-field lineup with Antonio, the minor and his
brothers, and Lara identified the minor and Antonio as participants in the
burglary. 

            Testifying
for the defense, the minor’s mother asserted that she, the minor, and her
25-year-old daughter Nicole attended Easter dinner at her other daughter’s
house from 3:30 p.m. to 10:30 or 11:00 p.m. 
Nicole testified and confirmed mother’s account. 

            In
sustaining the petition, the juvenile court found Lara and Barajas were
credible while the minor’s mother and sister were not. 

DISCUSSION

I.  Sufficiency
of the Evidence

            The minor
contends there is insufficient evidence to support the juvenile court’s finding
that he committed burglary.  We disagree.

            Criminal
allegations in a delinquency hearing
are subject to the same proof beyond a reasonable doubt standard as applied to
criminal court.  (In re Winship (1970) 397 U.S. 358, 368 [25 L.Ed.2d 368,
377-378].)  “When the sufficiency of the
evidence is challenged on appeal, we apply the familiar substantial evidence
rule.  We review the whole record in a
light most favorable to the judgment to determine whether it contains substantial
evidence, i.e., evidence that is credible and of solid value, from which a
rational trier of fact could find beyond a reasonable doubt that the accused
committed the offense.”  (>In re Ryan D. (2002)
100 Cal.App.4th 854, 859.)  “We must
consider all of the evidence in the light most favorable to the prevailing
party, giving that party the benefit of every reasonable inference from the
evidence tending to establish the correctness of the trial court’s decision,
and resolving conflicts in support of the trial court’s decision.”  (In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)  “[I]n juvenile cases, as in other areas of
the law, the power of an appellate court asked to assess the sufficiency of the
evidence begins and ends with a determination of whether, on the entire record,
there is any substantial evidence,
contradicted or uncontradicted, which will support the decision of the trier of
fact.”  (Ibid.) 

            The minor
attacks the eyewitnesses’ identification of him as one of the burglars.  He cites cases, which note that studies have
questioned the reliability of eyewitness testimony, and points out that an
unduly suggestive procedure can taint subsequent eyewitness
identification.  The minor also notes
that neither Barajas nor Lara ever saw the minor before the burglary, and they
did not give a detailed description of the minor to the police. 

            The minor
also asserts other alleged problems with the identification evidence.  He claims Lara and Barajas gave inconsistent
descriptions of the minor to the police. 
The minor additionally notes that he was found after Lara saw Antonio go
into a neighborhood home, where police found the minor. 

            Finally,
the minor attacks the field identification procedure.  Lara and Barajas told police that the
burglars were all young Hispanic males between the ages of 15 and 20.  However, of the four participants in the
field identification, two were Hispanic, Antonio J. and the minor, while
the other two were Black.  From this, the
minor asserts that Lara’s “in-court identification was not surprising given the
prior unduly suggestive lineup,” and “Barajas’s in-court identification also is
not surprising as he knew of Antonio J. and presumably [the minor] was the
only other Hispanic male in the courtroom.” 


            The
testimony of a single witness is sufficient to support a judgment or finding
unless the testimony is physically impossible or its falsity is apparent
without resorting to inferences or deductions. 
(People v. Cudjo (1993)
6 Cal.4th 585, 608-609; see also Evid. Code, § 411 [“Except where
additional evidence is required by statute, the direct evidence of one witness
who is entitled to full credit is sufficient for proof of any fact.”].)  “Identity is a question of fact for the trial
court [citations] and any claimed weakness in the identification testimony is a
matter of argument to the court below and cannot be effectively urged on
appeal.”  (People v. Hinson (1969) 269 Cal.App.2d 573, 578.)

            With the
exception of the attack on the field identification procedure, the minor
contests the eyewitnesses’ credibility. 
The juvenile court found Lara and Barajas credible, and we shall not
overturn that finding on appeal.  While
an unduly suggestive pretrial identification procedure violates a defendant’s
due process rights, the minor forfeited this claim by failing to object to it
at the jurisdictional hearing.  (Evid.
Code, § 353.) 

            The cases
cited by the minor do not change our analysis. 
People v. McDonald (1984)
37 Cal.3d 351, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914, addressed
whether it was an abuse of discretion to exclude expert testimony on the
reliability of eyewitness identification. 
(McDonald, at
p. 355.)  In Perry v. New Hampshire (2012) 565 U.S. __ [181 L.Ed.2d 694] the
Supreme Court declined to extend pretrial screening of an eyewitness’
credibility to those “cases in which the suggestive circumstances were not
arranged by law enforcement officers.”  (>Id. at p. __ [181 L.Ed.2d at
p. 703]).  State v. Lawson (2012) 352 Ore. 724 [291 P.3d 673], a case not
binding on us, addressed Oregon’s procedures for the admissibility of
eyewitness identification evidence.  (>Id. at p. 727 [291 P.3d at
p. 678].) 

            Two
eyewitnesses testifying at the jurisdictional hearing identified the minor as
one of the burglars.  Their testimony was
neither physically impossible nor false on its face.  Substantial evidence supports the trial
court’s finding.

II.  Counsel’s
Competence

            The minor
contends trial counsel was ineffective for failing to object to the field
identification procedure. 

            A minor
in a delinquency proceeding has the
right to effective assistance of counsel. 
(In re Edward S. (2009)
173 Cal.App.4th 387, 392, 406, 419.) 
“To establish ineffective assistance of counsel, a defendant must show
that (1) counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable probability that, but
for counsel’s failings, the result would have been more favorable to the
defendant.  [Citation.]  ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ”  (People
v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) 

            The minor
claims the field identification—which consisted of two Hispanics, the minor and
Antonio J., along with the two Black males found at Antonio J.’s
residence—was unduly suggestive because Lara and Barajas told police the
burglars were young Hispanic males.  He
claims competent trial counsel would have challenged the identification
procedure, and counsel’s failure to do so was prejudicial because it undercut
the only evidence of his guilt and his witnesses established an alibi. 

            “A
pretrial identification procedure violates a defendant’s due process rights if
it is so impermissibly suggestive that it creates a very substantial likelihood
of irreparable misidentification. 
[Citation.]  The defendant bears
the burden of proving that the procedure resulted in such unfairness that it
infringed the right to due process. 
[Citation.]  On appeal, we review
the totality of the circumstances in determining whether an identification
procedure was unconstitutionally suggestive.” 
(People v. Wimberly (1992)
5 Cal.App.4th 773, 788.)  “Appellant
must show unfairness as a demonstrable reality, not just speculation.”  (In re
Carlos M. (1990) 220 Cal.App.3d 372, 386.) 

            The test
for determining whether a procedure is unnecessarily suggestive is “whether
anything caused defendant to ‘stand out’ from the others in a way that would
suggest the witness should select him.” 
(People v. Carpenter (1997)
15 Cal.4th 312, 367.)  While two of
the four young men at the identification were of a different race than the minor,
they were placed in the lineup for a reason—they, like the minor, were found in
the home of the initial suspect, Antonio J.  Also, “there is no requirement that a
defendant in a lineup, either in person or by photo, be surrounded by others
nearly identical in appearance.”  (>People v. Brandon (1995)
32 Cal.App.4th 1033, 1052, citing People
v. Wimberly, supra,
5 Cal.App.4th at p. 790.)  The
courts have upheld the validity of lineup identifications despite disparities
among the participants.  (See >People v. Guillebeau (1980)
107 Cal.App.3d 531, 556-557 [the defendant had the darkest skin color]; >People v. Johnson (1992) 3 Cal.4th
1183, 1215-1218 [the defendant was the only person in jail clothing]; >People v. DeSantis (1992) 2 Cal.4th
1198, 1222 [the defendant was the only man in a red shirt].) 

            The fact
that Antonio J., the other Hispanic in the identification lineup with the
minor, was identified by Lara before the lineup, does not render the procedure
unduly suggestive.  Before she made the
field identification, Lara was given a standard advisement for witnesses at
such identification procedures, which included telling her that the subjects
were all suspects and that it was “just as important to free the innocent as to
prosecute the guilty.”  There is no evidence
that the officer conducting the field identification suggested that Lara should
identify the minor or any other suspect. 
Furthermore, Lara’s identification of the minor was corroborated at the
jurisdictional hearing by Barajas, who did not attend the field
identification. 

            An
objection to the pretrial identification would have been unsuccessful.  Declining to raise a futile objection is not
ineffective assistance of counsel.  (See >People v. Anderson (2001)
25 Cal.4th 543, 587 [“Counsel is not required to proffer futile
objections.”].)  Even if the objection
had been successful, the minor cannot establish prejudice in light of Barajas’s
testimony identifying the minor.  Accordingly,
the minor’s contention fails. 

DISPOSITION

            The
judgment is affirmed. 

 

 

 

                                                                                                        BUTZ                              , J.

 

 

 

We concur:

 

 

 

                    BLEASE                         , Acting P. J.

 

 

 

                    MAURO                         , J.