Opinion
G032196.
11-13-2003
In re KEITH T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEITH T., Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
Keith T., a ward of the juvenile court, was charged by petition with two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 213, subd. (a)(2)). Keith was 16 years of age at the time of the alleged robbery. After trial, the juvenile court sustained the first count and dismissed the second count, ordered that Keith remain a ward of the court, and ordered him to spend 120 days in a juvenile facility (with 68 days credit for time served). Keith appeals.
The only evidence supporting the conviction was the uncorroborated identification of Keith by one of the two robbery victims, Gerry Campos, during an in-field identification lineup. At trial, Campos recanted his identification of Keith. In People v. Cuevas (1995) 12 Cal.4th 252, 257 (Cuevas), the California Supreme Court held the sufficiency of an uncorroborated out-of-court identification to support a conviction must be determined under the substantial evidence test. Cuevas identified the circumstances attending an out-of-court identification that may affect its probative value. Here, the circumstances attending Camposs uncorroborated out-of-court identification of Keith rendered that identification not "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The bases for Camposs identification were that Keith is an African-American male, seemed to be the same height as the robber, and wore a blue and white "do-rag" similar to one worn by the robber. During the robbery, Campos looked downward and did not get a good look at the robbers face. The other victim, Joshua Snyder, also viewed the in-field identification lineup and at the time was sure Keith was not one of the robbers. At trial, Snyder confirmed that conclusion. Except for being an African-American male, Keith did not meet the physical descriptions of any of the robbers provided by Campos and Snyder to the police. At trial, Campos recanted the identification and testified he was not sure whether Keith had robbed him. Unlike Cuevas, supra, 12 Cal.4th 252, the prosecution here offered no evidence that Campos had a motive to repudiate his out-of-court identification or that Campos had been intimidated or feigned memory loss.
We therefore conclude substantial evidence does not support the juvenile courts order sustaining the first count of the petition and reverse.
FACTS
During the afternoon of February 15, 2003, Gerry Campos and his friend, Joshua Snyder, were skateboarding home from driving school. As they skateboarded past the McDonalds eatery at the intersection of Lincoln Avenue and Western Street in Anaheim, three men came out of a nearby apartment complex.
Two of the men were African-American, and the third was described as "lighter skinned" and "Italian." Snyder testified that one African-American man was about six feet three inches in height and muscular, and the other African-American man was about six feet two inches in height and skinny.
One of the men stuck out his foot and knocked Campos off his skateboard. Campos got up and went to get his skateboard, but was stopped by one of the African-American men. The man wore a white T-shirt and a blue and white do-rag, which is a piece of cloth wrapped around the head and tied in the back. The man with the do-rag stood over Campos, who is five feet seven inches in height, and several times said, "Empty your pockets." The man also said, "[y]oure making me nervous. Hurry up." According to Snyder, who was standing next to Campos, the muscular man made those statements. Campos emptied his pockets and gave the contents, a little over $2, to the muscular man. The lighter-skinned man told Snyder, who is about six feet in height, to empty his pockets. Snyder showed the man his back pocket and front right pocket were empty and did not give him any money.
The three robbers then went into the McDonalds. Campos and Snyder went to Snyders home and called the police.
Anaheim Police Officer John Pruitt and Reserve Officer Robert Wage were sent to investigate the robbery. They went to Snyders home and were given descriptions of the suspects. Pruitt testified that Campos and Snyder described the three suspects as, "a male black wearing a blue bandana . . . . [¶] . . . [¶] . . . a second male black suspect wearing a blue and white bandana, and a white T-shirt, and . . . a third male black suspect as being light-skinned."
After obtaining the descriptions, Wage went to the crime scene area while Pruitt continued to interview Snyder and Campos. Wage drove into an alley to the south of the McDonalds. Wage saw three African-American men. One of the three men wore a blue and white do-rag. The man wearing the do-rag ran into an apartment complex adjoining the alley. Wage detained the other two men and contacted Pruitt, who arrived to assist Wage in the alley. One of the two detained men wore a black jacket, and the other wore a white T-shirt. Both were about six feet tall.
About 10 minutes later, Keith, who is African-American, walked into the alley from the apartment complex into which the suspect wearing the do-rag had fled. Keith walked into the alley about 20 to 30 feet from Wage and Pruitt, and appeared to the officers to have "stepped out for curiositys sake." Keith is five feet ten inches tall. Wage testified Keith was not wearing a blue and white do-rag. Pruitt testified Keith was wearing a blue and white bandana.
Wage could not identify Keith as the same person who wore a do-rag and earlier fled into the apartment complex. Wage detained Keith because "he matched a description . . . of a male black, approximate size" and because "I saw the initial subject running into that area."
Wage and Pruitt set up an in-field identification lineup with Keith and the two other detained men. Other officers arrived. Pruitt and another officer returned to Snyders home and transported Campos and Snyder to the alley. Snyder and Campos were transported separately to view the lineup.
Snyder viewed the lineup and did not believe any of the men in the lineup had accosted Campos and him and had taken Camposs money earlier that day. At trial, Snyder testified that Keith was not one of men who had accosted Campos and him and had taken Camposs money.
Campos was transported to the alley in Pruitts patrol car. When Pruitt pulled into the alleyway, he asked Campos if he saw anyone he recognized. Pruitt testified Campos said, "yes," and, pointing to Keith, said, "the one thats standing right there with the blue and white bandana is the one who robbed me" (Campos testified he said, "thats the one with the do-rag"). Pruitt testified Campos pointed to another of the three men in the lineup and said, "that guy with the black jacket is the one that robbed my friend." Campos told the officers he was sure Keith was the man who robbed him.
Between the time of the lineup and the trial, Campos and Snyder argued about the identification. Campos changed his mind on the day of trial and testified he was not sure whether Keith was the robber. Campos testified he was scared and looking downward during the robbery, did not get a good look at the robbers face, and made the identification during the lineup based strictly on the fact Keith was wearing a do-rag and on his height. Campos testified, however, the robbers were taller than Snyder, who is six feet in height, and Keith is five feet ten inches in height.
Keith testified the apartment in which he was living on the day of the robbery was located next to the alley where he was arrested. Keith testified that on February 15, 2003, he walked through a gate from his patio and into the alley, where the police detained him. Keith had been in his apartment taking care of his younger sister, who was ill. He had gone outside out of curiosity because a friend had come to his apartment and said the police were in the alley detaining two of his acquaintances. When he left the apartment, he was wearing blue jeans, a white T-shirt, and a blue and white do-rag with a white headband.
Keiths sister, age 14, testified she was home sick on February 15, 2003 and Keith stayed home to take care of her. Keiths sister testified Keith did not leave the apartment that day until he walked outside and was detained.
DISCUSSION
The only evidence supporting the conviction is Camposs out-of-court identification of Keith, which Campos repudiated at trial. The issue presented is whether this evidence is sufficient to support the order sustaining one count of the petition for robbery.
In Cuevas, supra, 12 Cal.4th 252, the California Supreme Court overruled People v. Gould (1960) 54 Cal.2d 621, which had established the rule that an out-of-court identification without corroboration "by itself is insufficient as a matter of law to support a conviction." (Cuevas, supra, 12 Cal.4th at p. 261.) The distinctions between this case and Cuevas demonstrate substantial evidence does not support Keiths conviction.
In Cuevas, supra, 12 Cal.4th 252, 257-258, two gunmen approached an outdoor party held by the Jeffrey Street gang and shot Vincente Garcia. Guzman, a member of the gang, and Gomez, who considered the gang members to be his "`home boys," saw the shooting and recognized the shooter as a member of a rival gang. (Id. at p. 258.) Gomez and Guzman talked to a police officer shortly after witnessing the incident. Each provided detailed and consistent descriptions of the shooter, and Gomez identified the shooter as a "`West Side Anaheim" gang member. (Ibid.) Gomez also revealed that he had become acquainted with the gang member through a former girlfriend and picked the defendants picture out of a notebook containing 30 to 40 photographs of West Side Anaheim gang members. (Id . at pp. 258-259.) During a later interview, Gomez repudiated his earlier identification of Cuevas, claiming it had been motivated out of anger. (Id. at p. 259.) At trial, both Gomez and Guzman repudiated their earlier identifications and testified they thought "it was wrong to `rat off a member of a rival gang; that is, to inform the authorities that the gang member has committed a crime." (Ibid.) A gang expert in the case testified that "cooperating with police, even if the suspect is in a rival gang, is generally disapproved of in gang culture and that gang members who initially cooperate with police are subject to intimidation to change their testimony at trial." (Ibid.)
The Court of Appeal reversed the conviction on the ground the trial court committed reversible error by instructing the jury on the need for corroboration of the out-of-court identifications. (Cuevas, supra, 12 Cal.4th at p. 260.) The Supreme Court reversed the Court of Appeal, affirmed the conviction, and overruled People v. Gould, supra, 54 Cal.2d 621. (Cuevas, supra, 12 Cal.4th at p. 277.) The Supreme Court held an uncorroborated out-of-court identification is not in itself insufficient to support a conviction; rather, the sufficiency of the out-of-court identification to support a conviction must be determined under the substantial evidence test. (Cuevas, supra, 12 Cal.4th at p. 257.)
In Cuevas, the Supreme Court explained thePeople v. Gould corroboration requirement failed to take into account "the many varied circumstances that may attend an out-of-court identification and affect its probative value. These circumstances include, for example: (1) the identifying witnesss prior familiarity with the defendant; (2) the witnesss opportunity to observe the perpetrator during the commission of the crime; (3) whether the witness has a motive to falsely implicate the defendant; and (4) the level of detail given by the witness in the out-of-court identification and any accompanying description of the crime." (Cuevas, supra, 12 Cal.4th at p. 267.)
The court in Cuevas then reviewed the evidence surrounding the out-of- court identifications and concluded substantial evidence supported the conviction. The court explained: "[T]he shooting occurred during an outdoor party in an alley. It is undisputed that witnesses Gomez and Guzman were present at the party when Garcia was shot. Gomez was first interviewed by Officer Orr at the hospital immediately after the shooting and was interviewed again by Officer Kelley three days later; on both occasions he unequivocally identified defendant . . . as the shooter and gave a physical description of him. Although at trial Gomez recanted his identification of defendant, he admitted that he had made these two prior identifications of defendant to the police. Gomez also admitted at trial that he was acquainted with defendant before the shooting. And there was testimony by [an] eyewitness . . . that as the gunman approached, Gomez exclaimed: `I know that guy. Hes from West Side Anaheim. In addition, when Officer Orr interviewed witness Guzman at the hospital immediately after the shooting, Guzman gave a physical description of the gunman that was both similar to Gomezs independent description of the gunman and generally consistent with defendants appearance. [¶] Although witnesses Gomez and Guzman both disowned their out-of-court statements when testifying at trial, the prosecution offered evidence that they had a motive to falsely recant their statements: Gomez and Guzman both testified that they believed it was wrong to accuse a member of a rival gang of committing a crime, and a gang expert testified that gang members disapprove of testifying against rival gang members and intimidate witnesses who initially cooperate with the police into changing their testimony." (Cuevas, supra, 12 Cal.4th at pp. 276-277.)
This case stands in stark contrast to Cuevas. Here, one of the two victims, Snyder, did not identify Keith during the lineup or at trial. Snyder testified "I did not think that any of the men in the line-up were them" and did not recognize Keith in the courtroom. Campos did identify Keith during the lineup, but the circumstances attending the identification make it of questionable probative value. Campos (unlike the witnesses in Cuevas) had no prior familiarity with Keith. During the robbery, Campos looked downward and did not get a good look at the robbers face. Camposs identification during the lineup lacked detail and was based primarily on the fact Keith was an African-American male and was wearing a blue and white do-rag. Campos testified he also considered height in making the identification. But at trial, Campos testified he was robbed by a man who was taller than Snyder. Keith is shorter than Snyder.
Unlike the situation in Cuevas, the prosecution here offered no evidence Campos had a motive to repudiate his out-of-court identification. The prosecution presented no evidence Campos had been intimidated or feigned memory loss.
Other circumstances call into question the probative value of Camposs out-of-court identification. Keith behaved inconsistently with guilt. On the day of the robbery, he walked through the gate, out of his patio, and directly toward Wage and Pruitt. Pruitt testified Keith appeared to have "stepped out for curiositys sake." It is true, as the trial court noted, "not all people who commit crimes do brilliant acts." But Keiths walking into the alley is consistent with (1) Pruitts testimony that Keith appeared to have walked into the alley "for curiositys sake," (2) Keiths plausible testimony he had walked outside out of curiosity because a friend had told him the police were detaining some acquaintances, and (3) the testimony of Keiths sister. Wage testified he could not identify Keith as the same person who had fled into the apartment complex, but detained him because he was African-American, was the "approximate size" of one suspect, and came out of the apartment complex into which the subject wearing the do-rag had fled.
Finally, we are mindful that we are dealing with a cross-racial identification, which is a factor bearing upon the accuracy of an eyewitness identification. (See CALJIC No. 2.92.)
In light of the circumstances, Camposs out-of-court identification of Keith is not "evidence which is reasonable, credible, and of solid value" (People v. Johnson, supra, 26 Cal.3d at p. 578) and is not enough to support the conviction.
DISPOSITION
The order sustaining the first count of the petition is reversed.
WE CONCUR MOORE, ACTING P. J., IKOLA, J. --------------- Notes: "`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] `Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)