In re Ivan D.

Filed 6/18/07 In re Ivan D. CA2/5

Reposted to correct file date; no change to opinion text

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Cynthia Loo, Temporary Judge. (Pursuant to Cal. Const., art VI,  21.) Affirmed.

Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Susan D. Martynec, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court sustained a petition alleging that appellant Ivan D. committed a robbery in violation of Penal Code section 211, a felony. The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged him to be a ward of the court, and placed him in the camp-community placement program for a period not to exceed six years, which included one year from another case.

Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the court erred in admitting evidence of an in-field identification and further contending that there is insufficient evidence to support the court's finding that he committed a robbery. We affirm the juvenile court's orders.

Facts

On June 7, 2006 at about 3:40 p.m., Parkpoon Pookoom was walking home from school. As he reached the Metro stop at Santa Monica Boulevard and Vermont Avenue, he was approached by three males. Pookoom described two of the males as teenagers and the third as older, about 20 years of age. The adult male stood in front of him, one of the teenagers stood next to him and the other stood behind him.

The adult male stated that he wanted money. Pookoom did not give the male any money. The teenager behind Pookoom grabbed him around the neck and held him in a headlock. The teenager standing next to Pookoom reached into Pookoom's pocket and took out an Ipod. The three males then walked away. Pookoom had not seen the face of the teenager who stood behind him, but when that teenager walked away, Pookoom saw that he was wearing a blue shirt and jeans and had hair that was not totally black, but "brown, blonde."

Within a few minutes, police officers pulled up and asked Pookoom if he was all right. He told them about the robbery. He told police that the robbers were two teenagers and an adult, and that they looked "like Mexican or something."

Officer Thomas Andreas arrived and spoke with Pookoom. Pookoom described the clothing of the three robbers to the officer. He stated that the teenager who stood behind him was wearing a blue shirt and jeans.

Officer Andreas took Pookoom to an area about a block away where three suspects were being detained. Officer Andreas heard his partner read the police field identification admonition to Pookoom, who appeared to understand it.

The three males were handcuffed and standing together near some patrol cars when Pookoom arrived. Pookoom testified that one of the officers told him that the three men had been walking together when stopped by police.

The males were brought out individually for Pookoom to view. He identified the adult male as the male who stood in front of him, appellant as the teenager who stood behind him and Richard C., appellant's co-defendant in this case, as the teenager who reached into his pocket. Appellant was wearing a blue shirt and jeans. Pookoom's Ipod was recovered from one of the teenagers. Pookoom identified Richard C. at trial, but did not identify appellant.

Discussion

1. Identification procedure

Appellant contends that the field identification of him was unnecessarily suggestive and violated his right to due process and a fair trial. We do not agree.

Unreliable identification evidence violates due process and is prohibited by both the United States and California Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, 15.) To determine whether the admission of identification evidence violated a defendant's right to due process of law, we consider first whether the identification procedure was unduly suggestive and unnecessary. If so, we consider whether the identification itself was nevertheless unreliable under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (Ibid.)

One to one confrontation show-ups are inherently suggestive. (Stovall v. Denno (1967) 388 U.S. 293, 302.) There are times when exigent circumstances make such procedures necessary, however. (Ibid.) "'Prompt identification of a suspect who has been apprehended close to the time and place of the offense to exonerate the innocent and aid in discovering the guilty is a valid purpose for conducting a one person showup . . . .'" (People v. Nguyen (1994) 23 Cal.App. 4th 32, 38-39 [citations omitted].)

Here, the suspects were detained about one block away from the robbery scene, within minutes of the robbery. Thus, it was reasonable for the police to conduct a field show-up to determine if the suspects were in fact the robbers.

Appellant contends that even if a field show-up was necessary, this one was unduly suggestive because he and the others were handcuffed and standing grouped together when the victim arrived. We see no significance to these facts. Pookoom was given the standard field identification admonition and appeared to understand it. He was shown each suspect individually.

Appellant also contends that Pookoom's identification was unreliable because he did not see the face of the robber standing behind him, based his identification of appellant on the fact that he was wearing an undistinguishable blue shirt and was influenced by a police officer's statement that appellant was walking with two other men when stopped. Appellant notes that Pookoom was able to identify appellant's co-defendant at trial, but not appellant.

The reliability of an identification itself is usually considered once the identification procedure has been found unduly suggestive and unnecessary. (People v. Cunningham, supra, 25 Cal.4th at p. 989.) Since we have found the procedure proper, we need not consider the reliability of the identification itself as part of appellant's due process claim. Were we to consider the identification itself, we would find it reliable under the totality of the circumstances. The totality of the circumstances include "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." (Ibid.)

Here, Pookoom's opportunity to observe the robber behind him was somewhat limited, but his degree of attention during the robbery was high. Pookoom's description of the robber matched not only appellant's shirt, but also his pants and hair. Pookoom described appellant's hair as "not totally black" but with some blonde, yellow or brown in it. Thus, appellant's hair was distinctive. Pookoom also noted that appellant's hair was longer than his own. Further, the identification was made very shortly after the robbery, while Pookoom's memory was fresh. Pookoom did not display any uncertainty about his identification.

2. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support his conviction, and that such a conviction violates his constitutional right to due process. We do not agree.

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, 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.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)

Appellant contends that the evidence was insufficient because there was no in-court identification and the out-of-court identification was insufficient and unduly suggestive. As we discuss, supra, the out-of-court identification was not unduly suggestive.

"[A] testifying witness's out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court." (People v. Boyer (2006) 38 Cal.4th 412, 480.) Here, there was more evidence than the out-of-court identification linking appellant to the crime.

Appellant matched the victim's description of one of the robbers and was detained very shortly after the robbery very near the scene of the robbery. Pookoom was robbed by three males. Appellant was with two other males when detained by police. Pookoom positively identified both of the other males at the scene and also identified the other juvenile, appellant's co-defendant in this case, in court. One of the three males detained by police had Pookoom's Ipod in his possession. This is substantial evidence which would permit a rational trier of fact could find appellant guilty beyond a reasonable doubt.

Disposition

We affirm the juvenile court's orders.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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