Filed 9/18/18 In re M.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide and Browder A. Willis III, Judges. Affirmed in part and remanded with instructions.

Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott Taylor and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court adjudged M.A. (Minor) a ward of the court (Welf. & Inst. Code, § 602) after finding true allegations Minor committed felony robbery (Pen. Code, § 211; count 1).[1] The court committed Minor to participate in the Short Term Offender Program for a period not to exceed 90 days, after which he was ordered to be placed on home supervision for 30 days with probation conditions and to complete 40 hours of community service.

Minor appeals contending (1) he was denied due process under the Fourteenth Amendment because there was insufficient evidence to identify him as an individual involved in the robbery and the victim's in-court identification was unduly suggestive and prejudicial; (2) his constitutional rights were violated by denying him a jury trial in this juvenile proceeding when he was charged with a strike eligible offense; and (3) a gang condition listed in the dispositional hearing minute order should be stricken to accurately reflect the court's oral pronouncement of judgment. We disagree with the first two contentions. However, because the People concede the third contention, we remand the matter with instructions to amend the dispositional minute order to strike the challenged condition. In all other respects, we affirm the judgment.

BACKGROUND

A

Prosecution Evidence

1

The victim left a party in a Mission Valley parking garage at approximately 1:00 a.m. on September 16, 2017. As the victim and a friend walked down a driveway, a red four-door sedan drove past and an African-American male in the passenger seat with a box-type haircut yelled "gang shit" at them. When the victim yelled back, the car stopped and approximately five males exited the car.

Among the males, the victim described the African-American male with a box-type haircut, a man with braided hair and a goatee wearing a pink hoody, and a man wearing a baseball jersey. The man in the baseball jersey hit the victim's friend.

The African-American man approached the victim with his fists clenched, ready to fight. The victim ran. The man in the baseball jersey and the man with the braids tried to stop the victim. The man with the braids and a woman came up to the victim when the victim fell on his hands and knees. The man with the braids took the victim's hat off of the victim's head. He also demanded the victim's jacket and shoes, threatening to beat up the victim if he did not comply. After the man with the braids took the victim's hat, he handed it to the woman. The victim ran again.

The men caught the victim in a grassy area. They stomped on him and hit him while trying to take his clothing. As the stomping and beating occurred, the African-American man said, "Oh, we got you now." Then others said, "[W]e beat this nigga's ass. Take this nigga's shit." The man in the braids took the victim's Cyber 3 Jordan shoes, which cost him about $250.

The victim identified Minor in court as one of the individuals "stomping me out, like kicking me." The victim recognized the Minor from the party. He then said Minor was the person in a photo exhibit wearing the baseball jersey. The man in the photo exhibit was later identified as another individual named J.S.

The victim initially said three men beat him: the man with the braids, the man with the baseball jersey, and the African-American man. However, he clarified Minor also stomped on him and a total of four men beat him.

The victim saw Minor as the victim was running the first time. Minor tried to kick the victim's feet, so he would fall to the ground. Minor was present when the man with the braids demanded the victim's shoes. After the victim's shoes were removed from his feet, Minor and others punched and kicked the victim.

After they took the victim's things, the African-American man with the box-type haircut got into the red car. The man in the braids, the man in the baseball jersey, Minor, and the woman (collectively, the Group) got into a black Nissan and drove away.

The victim had called the police when he was first being chased. When responding officers arrived, the victim pointed to the individuals getting into the black vehicle.

After the incident, the victim was bleeding from his forehead and the side of his head behind his left ear where he was kicked. He had to get stitches. The victim got one shoe and his hat back. The shoe was near the location of where the Group got into a black car.

On cross-examination, the victim said four people kicked and punched him on the grass. The victim said he could not describe the fourth individual. The victim said he recalled Minor wearing a baseball jersey.

2

The victim's friend testified he left the party at the same time as the victim. As a car drove by, the people in the car yelled out and the victim yelled back. They parked the car and four men got out of the car. The victim's friend looked at the victim and then the victim's friend got hit in the neck.

Before he got hit, the victim's friend saw the African-American male who had been yelling out of the vehicle rushing toward the victim. The victim's friend saw five people chasing the victim. The victim's friend heard the people yell, "get his shoes." The victim's friend admitted he was fazed after someone hit him in the neck and he was distracted when someone demanded his chain, his phone and the things in his pockets before he left to get his car.

3

Two officers responded to a radio call for a disturbance. When they arrived at the location, the victim flagged them down. The victim said he had just been "jumped" and some things were taken from him.

The officers stopped a black four-door Nissan sedan. Five or six individuals exited the vehicle and were detained. An officer identified Minor in court as one of the individuals in the vehicle who was detained. A baseball cap taken from the victim was found during a search of the vehicle in the hatchback portion of the vehicle.

There were grass stains on the shirts of the man with braids and the man with the jersey. In the photo taken of Minor that morning, Minor also had a green stain on his sleeve, which appeared to be a grass stain.

The victim did a curbside identification with the police when things were more fresh in his mind. The victim identified Minor as being present at the incident and as one of the main instigators. The victim said Minor had taken his hat and told his friends to get the victim's stuff. The victim thought Minor had removed his hoodie but recognized him by his face and chin hair. On cross-examination, the victim acknowledged the statement about Minor taking his hat was in the police report, but then said, "Nah, that is the wrong person."

The victim's friend identified the man with the braids in a curbside lineup as the person who took the victim's shoes. He also identified the woman and the man in the baseball jersey.

At trial, however, the victim's friend denied telling police the man in braids took the victim's shoes. He said at trial the man in braids and the woman tried to stand up for them. The victim's friend did not identify Minor in the curbside lineup and testified at trial he did not recall Minor being present.

The victim's friend said his brother, who is associated with a gang, told the victim's friend not to mention "gang stuff" and to be careful. The victim's friend told the victim about his brother's comments. The victim's friend denied being fearful of gang retaliation.

B

Defense Evidence

1

Minor's friend, L.M., said he went to the party with Minor, J.S. (who wore the jersey), T.W. (the man with the braids), and two women. As they were leaving the party, L.M. saw the victim exchange words with people in a car. They parked the car and four men got out and began to get physical. L.M. denied Minor was involved. He said the Group watched what happened. L.M. saw the men chasing the victim. L.M. said he saw four men from the other car beat the victim. L.M. left to go to the Group's car. The rest of the Group watched for a minute or two and then followed L.M. and got in the car. They were pulled over shortly after they started to drive away. As they waited in the car after being pulled over, the Group talked about why they got pulled over. L.M. used his phone to look up what bail was for robbery.

At trial, L.M. denied knowing how the victim's hat got into the car. However, on cross-examination, L.M. admitted he told a police detective he saw T.W. pick up the hat after the fight and bring it to the Group's car.

2

A.V., one of the women with the Group, testified she saw a fight break out as the Group left the party. She saw some individuals in a car aggressively talk to the victim and his friend. The individuals pulled the car over, got out, and started chasing and beating the victim. Someone hit the victim's friend right away and he fell to the ground. A.V. became annoyed and walked away toward the Group's car. A.V. denied Minor was involved in the chase, the fight, or in taking property.

3

Minor testified the victim and the victim's friend were walking down the hill behind the Group when an older car with an African-American man with a box-type haircut and other men passed by. Minor recognized the African-American man. The victim exchanged words with the men in the car. The car made a U-turn, parked, and the men got out. Someone punched the victim's friend. The African-American man approached the victim. The victim backed up and tried to run. A third man from the car grabbed the victim and threw him to the ground. By that time, the four men caught the victim and started beating him. Minor said T.W. told the men to back off.

Minor saw T.W. pick up the victim's hat, which he gave to S.L., the other woman with the Group. The victim tried to take the hat from S.L., who snatched it back. The victim took off running. The men followed. T.W. and J.S. took off after them. Minor denied following or chasing the victim. Minor said T.W. is like a big brother and Minor is close to J.S.

Minor said he played a football game before the party. He also said he got green taco sauce on his shirt at the party. Minor denied having a physical altercation with anyone.

DISCUSSION

I

A

Minor contends he was denied due process under the Fourteenth Amendment of the United States Constitution because no rational trier of fact could have found him guilty of robbery beyond a reasonable doubt based on the identification testimony. He acknowledges the substantial evidence standard of review applies under both the federal and state law. (People v. Staten (2000) 24 Cal.4th 434, 460.)

"The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases …." (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) " ' "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1212–1213.) We will reverse only if it appears " ' "that upon no hypothesis whatever is there sufficient substantial evidence to support the [true finding]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)

" 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)

B

The victim identified Minor as being involved in the robbery both on the night of the incident and in court. On the night of the incident the victim positively identified Minor as being part of the robbery. He stated Minor took the victim's hat off his head, told his friends to take the victim's stuff, and threatened to beat the victim. Although he may have been mistaken about what Minor was wearing, the victim said he recognized Minor's face and chin hair. Photos admitted at trial showed Minor, T.W., and J.S. all had thin mustaches and some hair on their chins. However, Minor had less chin hair than the others and the shape of his face is different. An "out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification." (People v. Cuevas (1995) 12 Cal.4th 252, 265.)[2]

An in-court identification "carries with it the circumstances under which it was made, which, in turn, can be argued to and weighed" by the trier of fact. (People v. Breckenridge (1975) 52 Cal.App.3d 913, 936.) We conclude the in-court identification was not so unduly suggestive or unreliable that it violated Minor's due process rights. (See People v. Cunningham (2001) 25 Cal.4th 926, 989.) Although the victim said at trial Minor was the person in the photo with a baseball jersey, he later clarified four men participated in the beating when his things were stolen: Minor, the man in the jersey, the man with the braids, and the African-American man.

The victim consistently stated Minor was actively involved in the robbery by applying force or fear as the victim's shoes and hat were taken. (People v. Whalen (2013) 56 Cal.4th 1, 69 [definition of robbery].) In addition, the shirt Minor wore on the night of the incident had a green stain, like the grass stains police officers observed on T.W. and J.S. This was consistent with a struggle described by the victim in the grassy area where the beating occurred. Finally, Minor admitted he was present during the altercation. The court could have found his denial of involvement in the chase and robbery not credible based upon the totality of the circumstances.

The juvenile court had the benefit of observing the victim and the other witnesses and was in the best position to judge their credibility.[3] "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Considering the totality of the record, we conclude there was substantial evidence to support the juvenile court's true finding as to the robbery allegation.

II

The California Supreme Court has held " 'the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]], preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person' " and has since declined to reconsider its decision in the context of the Three Strikes law. (People v. Chism (2014) 58 Cal.4th 1266, 1334, quoting People v. Nguyen (2009) 46 Cal.4th 1007, 1028.) We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454–455.)

III

The People concede the juvenile court, at the dispositional hearing, found insufficient evidence of "gang ties" and struck recommended gang-related probation conditions. Nevertheless, the minute order imposes a probation condition prohibiting Minor from wearing "any item of clothing such as a hat, bandanna, badge, logo, jewelry," or possessing "any gang paraphernalia including photos or graffiti," or from using "a hand sign or name that the minor knows or reasonably should know identifies the [M]inor with ANY gang, or any other known gang." Accordingly, the minute order for the dispositional hearing should be amended to conform to the juvenile court's oral pronouncement of judgment. (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)

DISPOSITION

We remand the matter with instructions for the juvenile court to amend the dispositional minute order dated November 9, 2017, to strike the following condition: "The minor shall not wear any item of clothing such as a hat, bandanna, badge, logo, jewelry, or possess any gang paraphernalia including photos or graffiti, or use a hand sign or name that the minor knows or reasonably should know identifies the minor with ANY gang, or any other known gang." In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.