Filed 9/20/18 In re Z.A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Minor Z.A. was found to have committed second degree robbery. His appointed counsel asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Through counsel, minor requests that we address whether the juvenile court erred when it admitted evidence of (1) the in-field identification, (2) minor’s custodial statements to a detective, and (3) the conversation between minor and his companion at the police station. He also asks that we address whether the court erred when it found the petition’s allegation true.[1] Finding no arguable error that would result in a disposition more favorable to minor, we affirm.

BACKGROUND

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On July 28, 2017, at about 6:00 p.m., 16-year-old minor and another boy, J.H., approached a mentally handicapped man (the victim) who had just unlocked his bicycle outside the Family Dollar store. Minor yelled at the victim, “ ‘You stole my bike.’ ” The victim cried and replied, “ ‘That’s my bike. That’s my bike.’ ” The victim was afraid because he thought minor was going to rob him. Minor pushed the victim. He fell backward and hit his head. Minor left on the bicycle and J.H. followed.

Meanwhile, a witness who had pulled into the parking lot realized something was not right, so she stayed in her car and watched as this occurred. She was about 30 feet away and able to clearly see and hear everything that happened. She could not believe what she had just witnessed. After the boys left, she spoke to the victim and had someone call 911.

Officers responded to the scene within six to 10 minutes following the report of a strong-arm robbery of a bicycle. They got descriptions of the boys from the witness and the victim. The officers radioed for assisting units and a police helicopter. Within 15 to 20 minutes, officers had located two suspects who matched the descriptions, one pushing a bicycle, in front of a nearby Burger King restaurant. The officers apprehended both boys and detained them outside the Burger King.

An officer drove the witness to the Burger King parking lot to identify the apprehended boys. The witness sat in the back seat of the car and positively identified both boys, stating that minor was the one who pushed the victim and took the bicycle. An officer also drove the victim to identify the boys as he sat in the patrol car. The victim identified minor as the boy who pushed him and took his bicycle.

An officer immediately told minor he was under arrest and read him his Miranda[2] rights at about 6:45 p.m. Then the officer did the same to J.H. The boys were separately transported to the police station and placed in adjacent rooms. At about 7:45 p.m., a detective interviewed J.H. for about 30 to 45 minutes. The detective believed that minor could hear the interview through the shared wall. When the detective left J.H.’s room, the two boys started talking and arguing through the wall. J.H. told minor that the victim was “special.” The detective listened to and recorded their conversation. Two detectives then interviewed minor for about 30 to 45 minutes. Minor claimed it was J.H. who took the bicycle from the victim by wrenching it out of his hands. Minor said he touched the bicycle, but did not take it.

On August 1, 2017, a petition was filed pursuant to Welfare and Institutions Code section 602, alleging minor had committed second degree robbery (Pen. Code, § 211).[3]

On October 23 and 26, 2017, the contested adjudication hearing took place and produced the evidence detailed above. The court found the petition’s allegation true.

On November 16, 2017, the juvenile court imposed 45 days of electronic monitoring and ordered minor to perform 100 hours of community service.

DISCUSSION

I. In-Field Identification

Minor challenges the admission of the in-field identifications.

“ ‘An in-the-field showup … is generally an informal confrontation involving only the police, the victim and the suspect. One of its principal functions is a prompt determination of whether the correct person has been apprehended.’ ” (People v. Rodriguez (1987) 196 Cal.App.3d 1041, 1049.) An in-field identification is inherently suggestive to some degree because the process singles out a suspect. (People v. Anthony (1970) 7 Cal.App.3d 751, 765.) “The potential unfairness in such suggestiveness, however, is 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. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.” (Id. at pp. 764-765.) Even an unduly suggestive identification procedure does not warrant reversal absent a “ ‘substantial likelihood of misidentification’ ” under the “ ‘ “totality of the circumstances.” ’ ” (Manson v. Brathwaite (1977) 432 U.S. 98, 106.) “The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.” (Ibid.)

We review de novo the trial court’s ruling on the constitutionality of an identification procedure and uphold the factual findings by the trial court if supported by substantial evidence. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Contreras (1993) 17 Cal.App.4th 813, 819.) A defendant challenging an identification procedure bears the burden of establishing (1) the procedure used is unduly suggestive and unnecessary, and, if so, (2) whether the identification by the witness is reliable under the totality of the circumstances, taking into account such factors as the witness’s opportunity to view the perpetrator at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspects, the level of certainty the witness demonstrated at the showup, and the time between the crime and the showup. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The defendant must establish “unfairness as a demonstrable reality, not just speculation.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)

Here, the record demonstrated that both the witness and the victim got a clear view of minor. Then, officers arrived within 10 minutes, and the boys were apprehended within 20 minutes based on the descriptions given by the witness and victim. Officers promptly took the witness and the victim to the Burger King parking lot to identify the apprehended boys. Both the witness and the victim were able to pick minor from the two boys as the one who stole the bicycle. The identifications were prompt, not unduly suggestive, and they possessed sufficient aspects of reliability. Under the totality of the circumstances, there was no substantial likelihood of misidentification. The juvenile court did not err in admitting evidence of the identifications.

II. Minor’s Custodial Statements

Next, minor challenges the admission of the recording and transcript of his custodial statements made to the detective at the police station. We assume minor is claiming that his Miranda waiver was not a knowing, voluntary, and intelligent waiver of his Fifth Amendment right against self-incrimination, and that his statements were not voluntary.

“[T]he question whether the accused waived his rights ‘is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.’ Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. [Citation.] [¶] This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits—indeed, it mandates—inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 724-725.)

The prosecution has the burden of establishing a knowing, intelligent, and voluntary waiver of rights by a preponderance of the evidence. (People v. Nelson (2012) 53 Cal.4th 367, 374-375.) On appeal, “ ‘[w]e must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) This standard equally applies to the consideration of whether a juvenile waived his or her Miranda rights. (In re Art T. (2015) 234 Cal.App.4th 335, 348.)

The question of whether a minor’s responses were voluntary is governed by similar standards. “The test for the voluntariness of a custodial statement is whether the statement is ‘ “the product of an essentially free and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion. [Citation.] No single factor is dispositive; ‘rather courts consider the totality of [the] circumstances.’ ” (People v. Cunningham (2015) 61 Cal.4th 609, 642.) “The prosecution has the burden of establishing voluntariness by a preponderance of the evidence …. We accept a trial court’s factual findings, provided they are supported by substantial evidence, but we independently review the ultimate legal question.” (People v. Scott (2011) 52 Cal.4th 452, 480.)

In this case, as soon as the witness and the victim identified minor outside the Burger King, an officer informed minor he was under arrest and read him his Miranda rights, as was recorded by the officer’s body camera. The officer asked minor, who was sitting in a patrol car, if he understood his rights and minor indicated he did understand by nodding his head affirmatively. Then the officer did the same to J.H. The officer testified that these officers were required to “Mirandize” juveniles as soon as possible after their arrest. In this case, the detective told the officer to Mirandize the boys, but not to question them because the detective intended to do that himself.

We have reviewed the record and are confident the juvenile court thoroughly investigated this issue at the hearing, even posing additional questions to the officer. The evidence established that minor understood the admonitions and voluntarily waived his rights, and that his statements to the detective were uncoerced. The court did not err when it admitted minor’s custodial statements.

III. Conversation Between Minor and J.H.

In a related claim, minor challenges the admission of the conversation between minor and J.H. at the police station.

“ ‘Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust’ in a supposed friend or ally. [Citation.] ‘Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.’ [Citations.] [Citation.] [¶] Rather Miranda’s aim is to ensure that the suspect’s will to remain silent is not overborne by the coercive atmosphere of police questioning in custody. Both ‘custody’ and ‘police questioning’ are necessary to invoke Miranda, and both concepts are viewed from the suspect’s perspective. [Citation.] Even when the suspect is in the process of a custodial interrogation, voluntary statements to someone the suspect does not believe is a police officer or agent, in a conversation the suspect assumes is private, simply does not involve one of these two critical concerns.” (People v. Tate (2010) 49 Cal.4th 635, 686 (Tate), citing Illinois v. Perkins (1990) 496 U.S. 292, 296-297 (Perkins).) “[E]ven if a suspect happens to be in custody, ‘[t]here is no empirical basis for the assumption that [when] speaking to those whom he assumes are not officers, [he] will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.’ ” (Tate, at p. 685, quoting Perkins, at pp. 296-297.) Someone “who voluntarily speaks alone to a friend, even during a break in a custodial interrogation, has no reason to assume, during the private conversation, that he or she is subject to the coercive influences of police questioning.” (Tate, at p. 686; see Perkins, at p. 296 [“[c]onversations between suspects and undercover agents do not implicate the concerns underlying Miranda”]; see also People v. Webb (1993) 6 Cal.4th 494, 526 [defendant’s jailhouse calls to his girlfriend “were not the product of ‘custodial interrogation’ ” even though she secretly recorded them in cooperation with the police because “[f]rom defendant’s perspective, he was talking with a friend and lover,” and thus, his “statements were completely voluntary and compulsion-free”]; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284 [although defendant “misplaced his trust” in confiding in a fellow inmate and gang member who surreptitiously recorded their conversation, “his tape-recorded statements were voluntary and free of compulsion”].)

The record supports the conclusion that minor’s conversation with J.H. was not the result of coercive police conduct that overcame minor’s will and rendered his statements involuntary. The juvenile court did not err by admitting the conversation.

IV. Sustaining of Petition

Lastly, minor asks that we consider whether the juvenile court erred when it sustained the second degree robbery allegation in the petition. We take this claim to be a challenge to the sufficiency of the evidence supporting the petition.

“ ‘Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” ’ ” (People v. McKinnon (2011) 52 Cal.4th 610, 686.) “ ‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.] ‘In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court.” ’ ” (In re Gary F. (2014) 226 Cal.App.4th 1076, 1080.)

The evidence in this case amply established the victim was in possession of the bicycle, he was afraid of minor, and minor pushed him and took his bicycle. Thus, minor took the bicycle from the victim’s possession against his will by means of both fear and force. Substantial evidence supported the juvenile court’s finding that minor committed second degree robbery.

We further note that, having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to minor.

DISPOSITION

The juvenile court’s findings and orders are affirmed.