In re Miguel V.

Filed 10/10/06 In re Miguel V. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The minor, Miguel V., appeals from a dispositional order placing him on probation for two years with various terms and conditions, following the finding by the juvenile court that the minor committed vehicle burglary (Pen. Code, § 459)[1] and vehicle vandalism (§ 594, subd. (a)). On appeal the minor contends that he was deprived of the effective assistance of counsel as his counsel failed to bring a motion to suppress the in-field and in-court identifications of him by a witness. As we find that counsel’s performance did not fall below an objective standard of professional reasonableness, we will affirm the dispositional order.

BACKGROUND

On November 7, 2005, a petition under Welfare and Institutions Code section 602 was filed alleging that the minor committed vehicle burglary (§ 459; count 1), and vehicle vandalism (§ 594, subd. (a); count 2). The vehicle involved in both counts was a white 2000 Chevy truck belonging to Emil Olivarez.[2] The testimony at the jurisdiction hearing was as follows.

On November 3, 2005, Emil drove to his janitorial job at the middle school on Main Street in Soledad in his 2000 Chevy truck. He arrived at 2:00 p.m., parked in the main parking area at the school, locked the truck, and went inside. Later that afternoon Emil called his wife Norma to ask her to bring him a jacket.

Norma arrived at the school around 6:30 p.m., and drove up to within 10 or 11 feet of the back of Emil’s truck. Her son and two others were in the car with her. Norma saw a man inside the truck on the passenger side. She also saw a red Honda parked within four feet of the truck. A man wearing a hat was sitting inside the Honda, with the driver’s door open, watching the man inside the truck. The inside of the Honda appeared old and worn out. When Norma determined that the man inside the truck was not her husband and was doing something, she honked her horn.

The man jumped out of the truck, went around the back of the Honda, and entered the passenger’s side of that car. The Honda immediately drove off and went westbound on Main Street. Norma got out of her car so that she could see the Honda, but she lost sight of it. She did not remember any of the numbers on the Honda’s license plate. Her son called 911.[3] She told the dispatcher that the man she saw looked Hispanic and was hearing black pants and a red sweater. An officer arrived within two or three minutes. Norma described the car to the officer as a 1980s type Honda that appeared a “little lowered.” She described the person that had been in the truck as short and “a little bit on the thick side.” At the hearing, Norma identified the minor as the person she saw inside Emil’s truck.

Sergeant David Garcia was driving down Main Street when Norma flagged him down. She told him about a possible vehicle burglary and described an older red lowered Honda and a male wearing a red sweatshirt and black pants. He broadcast that information over the radio. As he was getting more details from Norma, he was advised by Officer Abraham Aguayo that Aguayo was probably behind the suspect vehicle.

Officer Aguayo was at the police department when he heard Sergeant Garcia’s radio dispatch. He drove around the Main Street area in a patrol car looking for an older model red Honda with two Hispanic males. He saw one traveling northbound on Front Street. He pulled in behind the vehicle and effectuated a vehicle stop. The Honda pulled into the parking lot of an apartment complex about seven or eight blocks from the middle school.[4] When they exited the Honda, the driver was wearing a baseball cap and the passenger was wearing a red T-shirt with short blue sleeves and dark jeans. Officer Aguayo had them stand by the passenger door of the Honda for an in-field identification.

About five minutes after the first officer arrived at the school, a second officer asked Norma to go to another location to view some people for a possible identification. Norma did not remember the officer’s exact words, but testified that he said that two males matching the descriptions she and her son had given had been stopped and that she and her son were to see if the males were the ones identified by them. Norma testified that it was “good news” for her because it happened so quickly; “we called and they caught them. We were just grateful.” She and her son went in a patrol car and drove by the parking lot of some apartments. In the lot she saw the minor and his “partner” standing next to the passenger side of their Honda. The minor was wearing the same clothes he was wearing when Norma first saw him: a red shirt and black long shorts. The minor’s partner was wearing a hat and was taller and thinner than the minor.

Officer Manuel Reyes transported Norma for the in-field identification. He told her that two individuals had been detained and that he was going to drive her to the location to see whether she would be able to identify the suspects. As they approached the apartment complex Norma first recognized the Honda and then recognized the individuals as the two who had broken into the truck. After advising Sergeant Garcia and Officer Aguayo that Norma had positively identified the two men, Officer Reyes drove Norma back to the middle school.

Emil testified that on the evening of November 3, 2005, his son found him at the school where he worked and told him that his truck had been broken into. He went to the truck and found that its front passenger window was broken, that the dashboard was ripped open, and that the dashboard stereo/CD player, a CD holder with over 30 CDs, and his wallet were missing from inside the truck. The total damage was just over $1000.

Officer Aguayo and Sergeant Garcia searched the red Honda, which was an early 1990s model that was lower than stock and had missing interior door panels, and the driver and the minor, but the officers did not find any of the items that were reported stolen from Emil’s truck. Officer Aguayo did find a socket, without a handle, in the minor’s pocket, and Sergeant Garcia found numerous socket sets, ratchets, and pliers lying on the car’s floorboard. Another officer searched along the route between the middle school and the apartment complex for any discarded items, but did not find any.

The minor told Sergeant Garcia that he had been in Greenfield prior to being stopped and that he was on his way home. The address the minor gave was about three miles from where the car was stopped.

The juvenile court found both counts in the petition to be true. The court declared the minor to be a ward of the court and placed him on probation for two years, in the custody of his parents, with various terms and conditions.

DISCUSSION

The minor contends that he was deprived of the effective assistance of counsel as counsel failed to bring a motion to suppress the in-field identification made by Norma as suggestive, as well as her in-court identification, which was tainted by the suggestive in-field identification. The minor argues that the in-field identification procedure was extremely suggestive because Norma’s identification occurred after she was told that officers had caught the two men she had described and that she was being taken to identify them. He further argues that “it is clear beyond meaningful question” that Norma went to the in-field identification with the belief that her identification of the suspects was a “mere formality.” And, suppression of the in-court identification was required because of the suggestiveness of the in-field identification.

“A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 414 (Ochoa).) “But it is black letter law that ‘if the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject [an ineffective assistance of counsel] claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance.’ [Citation.]” (Id. at p. 434.) This is because “[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at trial is typically motivated by considerations not reflected in the record.” (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.)

“It is not deficient performance for a criminal defendant’s counsel to make a reasonable tactical choice. [Citations.] Reasonableness must be assessed through the likely perspective of counsel at the time. ‘[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered good trial strategy.” ‘ (Strickland v. Washington (1984) 466 U.S. 668, 689 . . . .)” (Ochoa, supra, 19 Cal.4th at pp. 445-446, fn. omitted.)

The minor bore the burden below of showing an unreliable identification procedure. (Ochoa, supra, 19 Cal.4th at p. 412.) “ ‘The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his [or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.’ [Citation.]” (Ibid.; see also, People v. Kennedy (2005) 36 Cal.4th 595, 608.)

“To begin with, ‘[t]he “single person showup” is not inherently unfair.’ [Citation.] More important yet as it relates to this case: for 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. Due process does not forbid the state to provide useful further information in response to a witness’s request, for the state is not suggesting anything. . . . ‘A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.’ [Citation.]” (Ochoa, supra, 19 Cal.4th at p. 413, fn. omitted.)

This court has previously approved of the in-field showup procedure. In People v. Nguyen (1994) 23 Cal.App.4th 32, at pages 38-39, we stated: “Whether an identification procedure is suggestive depends upon the procedure used as well as the circumstances in which the identification takes place. For example, although ‘ “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned” ‘ [citations], sometimes exigent circumstances make such procedure necessary. As stated in People v. Martinez [(1989)] 207 Cal.App.3d 1204, 1219: ‘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 . . . .’ (Id. at p. 1219, . . . .)”

Some details that the minor considers unduly suggestive seem inherent in any showup. For example, he notes that Norma’s identification occurred after she was told that the police had caught two men and that she was being taken to see if she could identify them. However, considering all the circumstances, we conclude that the in-field showup was not unduly suggestive or unnecessary. (Ochoa, supra, 19 Cal.4th at p. 412.)

Norma was given a neutral admonition prior to participating in the in-field showup. She testified that she did not remember the exact words the officer used, “but he said that they had caught the guys with the description we gave.” Officer Reyes testified that he told Norma that some suspects were being detained and that he was going to transport her to the location to “see if she would be able to identify the suspects.” Thus, Norma was told only that two individuals had been detained and that the police needed to know whether she could identify them as the suspects. Norma had a good opportunity to view the red Honda and the minor at the time of the crimes. When she saw the car and the minor later in the parking lot of the apartment complex, she first recognized the red Honda and then saw that the minor was wearing the same clothes she had seen him wearing at the time of the crimes. The in-field showup occurred within minutes of her original observation of the red Honda and the minor. When the police are pursuing fleeing suspects, time is of the essence. It is important that the police establish quickly whether they have detained the correct suspects or must keep looking. The police were not required to wait and place the minor or his photo in a later lineup.

In light of our conclusion that the in-field showup was not impermissibly suggestive, we need not consider whether Norma’s identification of the minor during the showup and at the hearing were nevertheless reliable. As we stated earlier, “ ‘[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.’ [Citation.]” (Ochoa, supra, 19 Cal.4th at p. 412.) In our view, counsel’s failure to challenge the in-field showup as impermissibly suggestive was not deficient performance and therefore the minor was not deprived of the effective assistance of counsel.DISPOSITION

The disposition order of January 27, 2006 is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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Analysis and review provided by San Diego County Property line attorney.

[1] Further unspecified statutory references are to the Penal Code.

[2] Because some of the witnesses at the hearing have the same last name, we will refer to them by their first name in order to avoid confusion, and not out of any disrespect.

[3] The printout of the dispatch indicates that the 911 call came in at 18:40:41.

[4] The printout of the dispatch indicates that the Honda was pulled over at 18:45:48.