Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. J157294
Ruvolo, P.J.
An adult man (the victim) riding a bus late at night was hit, thrown to the floor, and kicked, and had his wallet stolen. The appellant in this juvenile delinquency matter, R.B., and D.J. (also a minor), were identified by the victim in a field showup as the persons who had assaulted and robbed him. D.J., whose jurisdictional hearing was held jointly with that of R.B. in the juvenile court, moved to suppress evidence of the showup identification, as well as any identification testimony by the victim at the hearing. R.B. did not join the motion. The juvenile judge denied it.
On appeal, R.B. argues that the showup was unconstitutionally suggestive; that his trial counsel’s failure to move to suppress constituted ineffective assistance; and that there is insufficient evidence to support a finding that he had committed robbery. We reject these contentions, and affirm the judgment.
Procedural and factual background
On May 1, 2007, a wardship petition was filed charging R.B. with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) ), and first-degree robbery of a passenger on a public transit vehicle (§§ 211, 212.5, subd. (a)). The juvenile court found good cause to detain him. R.B.’s jurisdictional hearing, which was held jointly with that of D.J., began on May 18, and continued during portions of four additional days, ending on June 7.
All further references to dates are to the year 2007 unless otherwise noted.
All further statutory references are to the Penal Code unless otherwise noted.
A third charge of second-degree robbery was stricken at the start of the jurisdictional hearing, because the parties and the juvenile judge agreed that it was redundant, being a lesser included offense of the first-degree robbery charge.
On June 7, the trial court found true the allegations that R.B. had violated sections 245, subdivision (a)(1); 211; and 212.5, subdivision (a). On June 21, the trial court committed R.B. to confinement under the jurisdiction of the juvenile probation department for a maximum of six years. R.B. filed a timely notice of appeal.
The victim was a janitor who worked a night shift. On April 28, in order to go to his job, he boarded an AC Transit bus at a stop in Hayward shortly after midnight. The bus was a model that had two sections, with the shorter section at the rear. The victim sat at the very front of the rear portion of the bus, on the side of the bus opposite the driver, next to the window and facing forward. It was Friday evening, so a lot of people were getting on and off the bus, most of whom were young African-American males.
When the bus reached 54th Avenue and International Boulevard in Oakland, there was an incident that caused the driver to stop the bus and get off of it. The victim realized he was going to be late to work as a result, and used his cell phone to report that fact to a coworker, holding it in his right hand up against the right side of his face. While doing so, he was struck by someone’s hand, twice, on the left side of his face. The blow came from his left side, not from in front of him. The victim turned around, saw the person who had struck him, and made eye contact with him.
The victim did not remember the specifics of the incident, but the bus driver testified that some teenagers had congregated near the rear doors of the bus, preventing them from closing, because they were talking to some girls who were standing outside the bus.
The person who struck the victim was dark complected, about five feet eight inches tall, skinny, and between 16 and 20 years old, and was wearing a green shirt with a stripe on it. At the jurisdictional hearing, the victim identified this person as D.J. Before the incident occurred, the victim had seen the person with the green shirt board the bus, and knew that he had been sitting one seat behind the victim on the other side of the aisle. The victim was in the habit, when riding a bus, of looking back frequently to see who was behind him.
After the victim was hit, he was grabbed by his shirt, pulled sideways onto his knee and side on the floor of the bus in the center of the aisle, and kicked several times on the shoulder, ribs, and hand of the left side of his body. He could see that D.J. was kicking him, and he believed, but was not sure, that someone else was kicking him as well. At some point during the assault, the victim ended up on his stomach with his head towards the front of the bus. While he was on the floor being kicked, he felt his wallet being taken out of his right back pocket.
The bus driver observed the assault on the victim, and reported it to the AC Transit dispatch office, but she was unable to identify or describe the assailants, except to confirm that one of the people who kicked the victim was wearing a red hooded shirt with a white “skeleton crossbone” on the back. She testified at the hearing that the assault on the victim involved about five or six people at different times; that she could not identify any of them; and that she did not recognize any of the items of clothing introduced as exhibits at trial. She did not see anyone take anything from the victim, or throw a wallet on the ground outside the bus.
The deputy sheriff who was dispatched to the scene confirmed at trial that the bus driver had described the red sweatshirt to him in essentially those terms.
When asked at the hearing whether he had been able to see who took his wallet, the victim responded, “Not too clearly, no. I know that there was someone wearing a red sweatshirt . . . with a skeleton outline on it.” The victim could not see the person in the red sweatshirt very well, but he had seen him board the bus, and knew that he was part of a group of young people who had been riding it. Prior to the assault, the person in the red sweatshirt had been sitting a little farther back in the bus than the person in the green shirt. Although they were not sitting in the same row, they had boarded the bus together about 10 minutes before the assault.
At the jurisdictional hearing, the victim described the person in the red sweatshirt as being between 16 and 20 years old, African-American, a little taller than D.J., thin, and wearing shoes with several colors on them. When asked whether the sweatshirt that R.B. was wearing when arrested looked like the one worn by this person, the victim responded, “It looks like it. It’s hard to tell. You see them all over the place.”
R.B. was born in June 1990, and was not quite 17 years old at the time of the dispositional hearing in this case.
The victim testified that after his wallet was taken, “They ran off the bus and someone tossed it down on the ground, and then one of them picked it up. There was [sic] four or five people at that time.” The victim, who had regained his feet by this time, saw from inside the bus when his wallet hit the ground, but by the time he got outside to try to retrieve it, it was gone, and he never got it back. It contained his driver’s license, his bus pass, his Social Security card, and some telephone numbers. While watching from inside the bus, the victim again saw the face of the person who had hit him.
R.B. had an adult bus pass in his possession when he was arrested later that morning, but the parties stipulated that it was given to him by his mother.
After his wallet was taken, the victim waited a short time for the sheriff to come; briefly answered the sheriff’s questions and described his assailants to him; and then talked to the driver of the ambulance that had arrived at the scene. The victim testified that he described his assailants to the sheriff as two African-Americans, both between the ages of 16 and 20 and around five feet eight inches to five feet ten inches tall, and that he told the sheriff what they were wearing.
The Alameda County Sheriff’s Office provides policing services to AC Transit. We will refer to the deputy sheriff who investigated the assault, and testified at the hearing, as “the sheriff.”
The bus driver, who was standing four or five feet away from the victim when his initial conversation with the sheriff took place, recalled the victim telling the sheriff that he could not give a description of his assailants, and did not recall the victim referring to a red or green sweater. The sheriff later clarified, however, that the victim’s description of the assailants was given in the ambulance, not during the sheriff’s initial conversation with the victim in the bus. He confirmed that the victim had described the people involved as one person who was about five feet ten inches tall, weighed 160 pounds, and wore a red hooded sweatshirt, and a second person who was a black male about 20 years old, five feet 8 inches tall, and 160 pounds, and who wore a green sweater and jeans. At this time, the victim did not report that the person with the red sweatshirt had been wearing multicolored shoes.
The officer then asked the victim to go a short distance up International Boulevard to “look at some people there that were on the bus.” The victim did not think the people he was shown at that time had been involved in the assault, although he knew they had been on the bus, so the officer took him back to the paramedics, who took the victim to the hospital. None of the people who were shown to the victim at that time was wearing a red sweater or sweatshirt with a skeleton on it.
About 2:37 a.m., the sheriff who had interviewed the victim at the scene arrived in the area of 14th Street and Broadway in downtown Oakland. While there, he spotted two young African-American men standing on the corner, one wearing a red hooded sweatshirt with a “skeleton bone design” on the front, and the other wearing a green sweater and jeans. The two young men’s heights and weights were consistent with the descriptions given by the victim, and they were the first people the sheriff had seen that night who met that description. At the hearing, the sheriff identified the one who was wearing the red sweatshirt as R.B., and the one in the green sweater as D.J. The sheriff and a colleague detained both young men, handcuffed them, and later brought them, in separate cars, to the hospital where the victim had been taken. Before doing so, they contacted the victim and told him they wanted him to look at some suspects, and he asked them to bring them to the hospital because he was still being treated there.
When the sheriff and his colleague arrived at the hospital with the suspects, the sheriff brought the victim out into the hospital parking lot, placed him in the back seat of one of the sheriffs’ cars, and asked him if he could identify the two suspects. The suspects were each shown to the victim separately, while standing next to the other sheriff’s car about 75 feet away (according to the victim), and were illuminated by the spotlight on the car in which the victim was seated. The suspects were presented to the victim separately, one after the other, both wearing handcuffs, and he recognized both of them “right off” because they looked “familiar.” The first one was identified by the victim at trial as R.B. When the victim identified R.B. as one of his assailants in the hospital parking lot, R.B. was wearing a red shirt with a skeleton on it, and shoes with numerous colors. The second suspect shown to the victim was D.J., who was wearing a green sweater.
The sheriff testified that the distance was only approximately 50 yards.
The victim was given a field showup form to sign, but he testified that he did not sign it until shortly after he had seen the two suspects in the hospital parking lot. The sheriff testified, however, that he read the victim a standard field identification admonition, and had him sign it, before taking him to look at the initial group of people who were shown to the victim before he was taken to the hospital, and that he gave it to the victim to read again before showing R.B. and D.J. to him at the hospital.
Discussion
A. Ineffective Assistance of Counsel
R.B.’s opening brief is devoted in large part to the contention that the victim’s showup identification of R.B. was unconstitutionally suggestive, and that both it and the subsequent in-court identification should have been suppressed. As R.B. acknowledges, however, his trial counsel did not file a motion to suppress the victim’s identification testimony. Accordingly, the issue has been waived for purposes of direct appeal (People v. Cunningham (2001) 25 Cal.4th 926, 989; Evid. Code, § 353), and can only be raised indirectly, by way of a claim of ineffective assistance of counsel. (See, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 226-227; In re Frank S. (2006) 142 Cal.App.4th 145, 150-152.)
To demonstrate constitutionally ineffective assistance of counsel, R.B. must prove two things. First, he must show that counsel’s performance was unreasonable when measured by prevailing professional norms. Second, he must show that there is a reasonable probability that but for counsel’s acts or omissions, the result of the proceeding would have been more favorable to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
First, where “ ‘the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . ., [then] unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [the conviction must be] affirmed on appeal. . . .’ ” (People v. Avena (1996) 13 Cal.4th 394, 418, italics omitted; see also People v. Ledesma (2006) 39 Cal.4th 641, 746.) For that reason, in the absence of unusual circumstances, a claim of ineffective assistance of counsel for failing to move to suppress evidence normally is not cognizable on a direct appeal from the judgment. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Here, D.J., whose detention hearing was held jointly with R.B.’s, did move to suppress the victim’s identification testimony as to him, and the motion was denied. R.B.’s trial counsel, who worked for the public defender’s office, was present when the motion was made, yet he refrained from joining in the motion or bringing one of his own. R.B.’s counsel neither was asked for nor gave any explanation for that decision. Accordingly, the record does not permit us to determine anything about the reason for the decision other than that it cannot have been the product of mere inadvertence.
However, even assuming without deciding that appellate counsel is correct, that appellant’s trial counsel had no valid reason for not moving to suppress the identification, when a conviction is challenged on the basis of a claim of ineffective assistance of counsel, “prejudice must be affirmatively proved.” (People v. Hart (1999) 20 Cal.4th 546, 624.) The defendant must show “ ‘ “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” . . .’ [Citation.]” (People v. Staten (2000) 24 Cal.4th 434, 451.)
R.B.’s appellate counsel argues that D.J.’s motion was meritorious, but the fact remains that the juvenile court denied it. Moreover, the circumstances of the victim’s observation of his assailants, and of the subsequent field showup, were essentially identical with respect to both defendants. Indeed, appellate counsel relies on the facts about the showup that were brought out at the hearing on D.J.’s motion.
In any event, our own evaluation of the field showup leads us to conclude that R.B. was not prejudiced by his trial counsel’s conduct. “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, 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 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. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
Had this issue been preserved in the trial court, our standard of review would be de novo. (People v. Kennedy (2005) 36 Cal.4th 595, 609.) Without deciding whether the same standard applies when the issue is raised indirectly, as an issue of ineffective assistance of counsel, we will review the issue de novo in this case.
In In re Carlos M. (1990) 220 Cal.App.3d 372, Division One of the Fourth District stated that “[a] single-person show-up is not inherently unfair” (id. at. p. 386), and that “single-person show-ups for purposes of in-field identifications are encouraged” rather than being “impermissible absent a compelling reason.” (Id. at p. 387, original italics.) On this appeal, R.B.’s counsel argues that In re Carlos M. was incorrectly decided in this respect. The quoted statements were at least arguably dicta, inasmuch as the court went on to consider the totality of the circumstances and decide that the victim’s identification was reliable. (Ibid.) In any event, we need not and do not reach this issue. We will assume for the purpose of argument on this appeal that the field showup which resulted in the victim’s identification of R.B. and D.J. as his assailants was unnecessary and suggestive. This does not end our inquiry, however.
“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.” (Manson v. Braithwaite (1977) 432 U.S. 98, 106, fn. omitted.) “Admission of . . . identification evidence is error only if the identification procedure was unduly suggestive and unnecessary and it is unreliable under the totality of circumstances. [Citation.]” (People v. Kennedy, supra, 36 Cal.4th at p. 610.) Where there is “ ‘no substantial likelihood of misidentification’ ” (Manson v. Braithwaite, supra, 432 U.S. at p. 106), the evidence resulting from a showup is admissible, because in “cases in which the identification is reliable despite an unnecessarily suggestive identification procedure[,] reversal [of the resulting conviction] is a Draconian sanction.” (Id. at p. 113, fn. omitted.) Moreover, “[t]he defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citation.]” (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.)
In People v. Huggins (2006) 38 Cal.4th 175, our Supreme Court upheld the admission of an identification resulting from a field showup. In so doing, the court relied on the fact that there was only short lapse of time between the crime and the showup, and that the suspect wore distinctive clothing, which the victim had a “good opportunity to view” as her assailant fled the scene. In addition, the victim identified the defendant in court as her assailant “without hesitation.” The court held that these factors constituted sufficient “indicia of reliability . . . to make the identification evidence admissible. [Citation.]” (Id. at p. 243.)
All of the same factors are present in the current case. The victim had a good opportunity to view both D.J. and R.B. when they boarded the bus together prior to the assault, and was able to provide detailed, reasonably accurate descriptions of them after the attack. He remembered R.B.’s distinctive red sweatshirt with the white skeleton design on it, which the bus driver also described. He also noticed R.B.’s multi-colored shoes, which he could have seen again while prone on the bus floor. Moreover, the victim was taken to another field showup, before he was asked to identify D.J. and R.B., and he told the sheriff that the people he was shown on that occasion had not been involved in the assault. This tends to negate any inference that the victim’s later identification of D.J. and R.B. was unduly influenced by the suggestive nature of the showup situation itself. Finally, the victim testified that when he was shown D.J. and R.B. in the hospital parking lot, he recognized both of them “right off,” and at the hearing, he identified both young men without hesitation.
For all of the foregoing reasons, the totality of the circumstances in the present case convinces us that the victim’s identification of R.B. as one of his assailants was reliable. Accordingly, R.B. has failed to show that his trial counsel’s failure to move to suppress the identification evidence prejudiced him, and his ineffective assistance of counsel claim fails for this reason.
B. Sufficiency of Evidence of Robbery
R.B.’s second contention on appeal is that the evidence is not sufficient to support the finding that he committed robbery. Specifically, he argues that the record does not establish that it was he, rather than D.J. or some other person, who took the victim’s wallet. In reviewing this issue, we bear in mind the trial court’s express finding that “[a]lthough only one of the minors took the wallet, they were both acting together, in my mind, as principals. So it was not a situation of aiding and abetting. They were principals in this assault and robbery.”
“[O]n [an] appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition . . . we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) This test is whether substantial evidence supports the trial judge’s conclusion. (People v. Johnson (1980) 26 Cal.3d 557, 576.) To be substantial, evidence must be credible, reasonable and of “ ‘solid value’ ” such that a “ ‘reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151.)
In applying this standard of review, we must view the evidence in the light most favorable to the decision below. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Moreover, we review the entire record, not merely parts highlighted by the parties. (Id. at p. 577.) We also “presume every fact [the judge] could reasonably have deduced from the evidence. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 480.) “[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874; see In re Ryan N., supra, 92 Cal.App.4th at p. 1373 [“The juvenile trial court was the trier of fact and the sole judge of the credibility of witnesses; we are not.”].) “In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (Ibid., original italics.)
In the present case, the victim testified that he felt his wallet being withdrawn from his back pocket while he was lying on the floor being kicked after the person later identified as D.J. hit him and pulled him to the floor, and that someone in a red sweatshirt with a skeleton on it, who had boarded the bus at the same time as D.J., was present at the time this was happening. That person was later identified as being R.B. D.J. and R.B. were later seen together by the sheriff in downtown Oakland. This evidence, coupled with reasonable inferences, is sufficient to enable a reasonable judge to find, as the trial judge did here, that the two persons who assaulted the victim acted in concert, and that it was one of those two persons who took the wallet. Accordingly, sufficient evidence supports R.B.’s conviction for robbery.
disposition
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.