Opinion
A149648
08-31-2018
In re E.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JW166198)
I. INTRODUCTION
The juvenile court adjudged appellant E.H. a ward of the court after it found that he had committed second degree robbery with the use of a firearm and infliction of great bodily injury, and assault with a firearm with the infliction of great bodily injury. The juvenile court set E.H.'s maximum term of confinement at 22 years.
On appeal, minor claims this is a case of "mistaken identity." He argues that the police illegally detained him based on racial profiling and that the subsequent field identification procedure employed by the police was overly suggestive and unreliable based upon the totality of the circumstances, requiring suppression of the evidence. Alternatively, minor contends his defense counsel rendered ineffective assistance of counsel by failing to move to suppress this evidence, and that the evidence, in any event, was insufficient to support his commission of the charged offenses. He claims the delinquency proceedings were further marred by: 1) the improper admission of evidence regarding the use of the "Find My iPhone" application to locate the victim's cell phone; 2) a dispositional hearing held "largely off-the-record" in chambers; 3) sentencing error; and 4) "pervasively" ineffective assistance of counsel at the jurisdictional and dispositional hearings. We agree that minor's sentence for assault with a firearm and great bodily injury enhancement must be stayed. We modify the judgment accordingly, and affirm as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2016, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that minor, age 15, had committed second degree robbery (Pen. Code, § 211) with the personal use a firearm (§12022.53, subd. (a)), use of a deadly weapon (§ 12022, subd. (b)(1)), and infliction of great bodily injury (§ 12022.7, subd. (a)), and assault with a firearm with the infliction of great bodily injury (§§ 245, subd. (a)(2), 12022.7, subd. (a)). A contested jurisdictional hearing began on September 14, 2016, at which the following evidence was disclosed.
All further undesignated statutory references are to the Penal Code.
On August 22, 2016, at around 9:00 p.m., Jeffrey Golden was walking alone on San Jose Avenue near Balboa Park in San Francisco. He had a cell phone in his left hand, and carried a cross-body messenger bag, containing various items, including his prescription glasses. Golden was new to San Francisco and was using the global positioning system (GPS) on his iPhone to guide his way home.
As Golden was walking on a portion of San Jose Avenue that crossed the freeway, "out of nowhere . . . [he was] smashed on the right side of [his] face" by a heavy metal object, causing him to drop his phone. When Golden turned, he saw a person he later identified as minor. Minor held a two-tone, nine-millimeter pistol to the left side of Golden's chest. Minor stood about six inches from Golden. Minor wore a hooded sweatshirt and appeared to be a teenager or young adult. Minor was of "small stature" and "skinny." Golden also observed minor's skin color, hairstyle (when his hood later fell from his head), and teeth.
As minor spoke to Golden, the latter "started fighting back." Golden pushed the gun away from his left side, noting that it felt like a real, metal gun, not something plastic. While holding the gun, Golden punched minor in the face. Golden then took off running. When Golden looked back, he saw the minor point the gun at him, then lower it, and run after him.
Golden ran 20 to 25 yards, looking back to see if minor had pulled his gun again. Golden, who had a pocket knife with him, placed the unopened knife in his right hand "to put power behind the punch" in anticipation of a fight. As minor came within five feet of Golden, the latter turned around. As a result, minor ran into the "butt end" of the knife.
As minor stumbled backward, a second man appeared and tried to tackle Golden. Golden and the second man fought and eventually "got to the ground." While the two fought on the ground, minor pistol-whipped Golden about the head, face, and neck. Golden estimated that he received four or five blows to the head; additionally, he was struck on the left arm and on his spine.
Minor demanded that Golden "give [him] the bag." Fearing that he would lose consciousness from additional blows, Golden surrendered the bag. Minor and his companion fled the area, picking up Golden's iPhone as they ran.
Golden, who was bleeding profusely, flagged down a passing car, and someone in the car called the police. A pedestrian stopped and also called in the incident. At one point, Golden got on the phone and spoke with police dispatch. The computer assisted dispatch ("CAD") description of the suspects that went out was " 'two black males suspects, slim build, tall, black hoodies, dark jeans' " and " '25 to 30' " years of age. Golden, however, testified that he remembered telling the 911 dispatcher that the two men were black, "young adults, from late teens to early 20s," both wearing "dark hoodies."
At 9:12 p.m., San Francisco Police Officer Dong Ha and his partner were dispatched to investigate a robbery near San Jose Avenue. Golden told Officer Ha that his phone was equipped with GPS tracking. Golden gave Officer Ha his user name and password to activate the "Find My iPhone" application ("Find My iPhone" or "Find My iPhone App") on his own phone. Using his phone, Officer Ha input Golden's information to activate the Find My iPhone App to determine the location of Golden's phone. Officer Ha discovered that Golden's phone was pinging its location at Seventh and Market Streets in the Tenderloin District. Dispatch relayed this information to police units in that area. The tracking of the phone occurred between 9:29 and 9:32 p.m.
About 9:30 p.m., Officer Steven Orengo received a dispatch call that a stolen iPhone had been tracked to Seventh and Market Streets. That area was known to Officer Orengo as a location where "a lot of stolen items are sold[.]" The perpetrators were described as two black males, 5 feet 10 inches tall, wearing dark clothing. Officer Orengo and his partner Officer Cunnie, in full uniform and driving a marked patrol vehicle, drove to Seventh and Market Streets arriving in "about a minute."
On the northeast corner of Market Street, where Seventh Street becomes Charles A. Brennan Street, Officer Orengo saw "two black males wearing darkish clothing." They appeared to be together because they were conversing. Believing that the men matched the broadcasted description, the officers got out of the patrol car and approached the suspects, one of whom was the minor. Seeing the officers, minor and his companion crossed the street and approached a Muni platform. Officer Orengo called to them: " 'Police. Stop. I want to talk to you.' " Minor fled eastbound on Market Street, turning north on Jones Street, and east on Golden Gate Avenue. Officer Orengo caught up with minor on Golden Gate Avenue and, together with other officers, subdued him. Minor was 5 feet 8 inches tall and weighed 150 pounds. He was dressed in jeans with a white and blue pattern and a gray sweatshirt. His companion, Quinton Hall, was six feet tall and "heavier-set," weighing about 280 pounds. Hall was wearing light blue jeans and blue, puffy coat. Officer Orengo testified that minor and his companion "absolutely" matched the dispatch description; it was dark and "they did have what appeared to be dark clothing on." Officer Orengo further testified that he did not see any other people in the area matching the dispatch description of the suspects.
Officer Ha escorted Golden, taken by ambulance, to Golden Gate and Jones to conduct a "cold show," allowing the victim to determine whether the suspects were the perpetrators. Golden identified minor as the perpetrator with the gun. Golden said, " 'That's him. I recognize his face. I recognize his nose, the gray hoodie, nose, chin, face. I recognize his figure too, skinny.' " Golden confirmed at the jurisdictional hearing that minor was the perpetrator.
After Golden identified appellant on the street, the victim was taken to the hospital, gushing blood from the cuts on his forehead. The cuts required an undetermined number of stitches. Additionally, Golden suffered a concussion. His property was never recovered.
Minor presented an alibi defense. Michael Francis, minor's neighbor on Treasure Island, testified that he saw appellant standing at a bus stop between 8:00 and 8:45 p.m. on August 22, 2016. A defense investigator testified that it took 50 minutes to travel by bus from Treasure Island to the scene of the crime, although the distance could be traveled by car in 10 minutes.
III. DISCUSSION
A. Minor was Lawfully Detained.
Minor contends that the police did not have reasonable suspicion to stop him because he did not match the victim's description of the assailants, but was detained because he was a black male found at a location identified by a "questionable" cell phone application. He argues in the alternative that, should this court determine his right to challenge the admissibility of this evidence has been forfeited for failing to file a timely motion to suppress below, we should deem his attorney's failure ineffective assistance of counsel.
Generally, probable cause is necessary to justify the seizure of a person. (Whren v. United States (1996) 517 U.S. 806, 817.) An officer who lacks probable cause to arrest "can conduct a brief investigative detention when there is ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citations.] Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " (People v. Celis (2004) 33 Cal.4th 667, 674 (Celis).)
For a detention to be lawful under the Fourth Amendment, the officer must be able to point to specific and articulable facts that, giving due weight to the reasonable inferences the officer may draw from those facts in light of experience, reasonably warrant the intrusion. (See generally Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Souza (1994) 9 Cal.4th 224, 230 (Souza).) In particular, an officer may stop and detain a person for questioning or limited investigation if the officer has a "reasonable suspicion," based on specific and articulable facts, that some activity relating to crime has taken place or is occurring or is about to occur, and the person he intends to stop or detain is involved in that activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; Souza, supra, 9 Cal.4th at p. 231 ["A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity"].)
This "reasonable suspicion" " 'is dependent upon both the content of information possessed by police and its degree of reliability.' [Citation.] The standard takes into account 'the totality of the circumstances—the whole picture.' [Citation.] Although a mere ' "hunch" ' does not create reasonable suspicion, [citation], the level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause." (Navarette v. California (2014) 572 U.S 393, 397.) " 'Reasonable suspicion,' " as well as " 'probable cause,' " "are commonsense, nontechnical conceptions that deal with ' "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ' " (Ornelas v. United States (1996) 517 U.S. 690, 695.)
In this case, by the time Officer Orengo detained the minor, he was aware of the following articulable facts: (1) Golden reported that armed perpetrators forcibly took his messenger bag and iPhone; (2) the perpetrators were described as two black males, 5 feet 10 inches tall; (3) the robbers were wearing dark clothing; (4) the Find My iPhone App located Golden's phone at Seventh and Market, after Golden's Apple login information was entered into the app on Officer Ha's phone; (5) approximately 30 minutes after the crime, minor and co-defendant were observed in the area where the Find My iPhone App was tracking Golden's phone; (6) minor and co-defendant matched the description of two black males wearing dark clothing; (7) no other people in the area matched the dispatch description of the suspects; (8) Seventh and Market is a high-crime area, where "a lot of stolen items are sold[;]" and (9) minor fled when Officer Orengo asked to speak with him.
Based on the totality of the circumstances, it was reasonable for Officer Orengo to form a suspicion that minor and co-defendant were involved in the robbery, such that he could detain the two individuals to investigate. (See, e.g., People v. McCluskey (1981) 125 Cal.App.3d 220, 226 [reasonable suspicion to stop lone vehicle traveling from area of robbery reported minutes earlier, where officer reasonably believed passenger, a 20-year old Mexican male with dark hair and a dark jacket, matched the description of robber as a 19-21 year old Mexican male with brown hair and blue jacket].)
Minor supports his argument that there was a lack of reasonable suspicion by pointing out the discrepancies between the dispatch report and how minor and co-defendant actually looked. These include that minor was 15, and not 25 to 30 years old as reported by the CAD; minor wore a gray sweatshirt and jeans with a light pattern rather than dark clothing; the other male was wearing light blue jeans and blue puffy coat rather than the reported dark hoodie and jeans; Hall was 6 feet tall and weighed about 280 pounds rather 5 feet 10 inches, with a slim build.
These discrepancies must be considered as part of the totality of the circumstances, which include the significant matches between the descriptions aired by dispatch and what Officer Orengo observed when he found the suspects. The presence of the two suspects together in the location where the stolen cell phone had recently pinged, matching general physical descriptions broadcast, was grounds for reasonable suspicion regardless of these discrepancies. "[M]inor discrepancies do not prevent development of the suspicions which justify temporary detention for questioning. Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties." (People v. Smith (1970) 4 Cal.App.3d 41, 48-49.) Thus, courts have repeatedly held an investigatory detention proper under the totality of the circumstances even when a suspect's characteristics are not an exact match with the victim's description. (See, e.g., People v. Craig (1978) 86 Cal.App.3d 905, 911-912 [finding an investigatory detention reasonable because, although "[d]efendants did not perfectly match the general description given," "the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number)"].)
Additionally, the stop did not constitute racial profiling. The suspects had been identified as "black males" by the complaining party. Officer Orengo considered this description along with other factors. (See United States v. Montero-Camargo (9th Cir.2000) 208 F.3d 1122, 1134 fn. 22 (en banc) (explaining that any racial or ethnic appearance "may be considered when the suspected perpetrator of a specific offense has been identified as having such an appearance" so long as "other individualized or particularized factors which, together with the racial or ethnic appearance identified, rise to the level of reasonable suspicion"). (Id. at p.1134, fn. 22.) Those factors included that at about 9:30 p.m., approximately 30 minutes after the crime, the Find My iPhone App indicated that victim's phone was in the high-crime area of Seventh and Market, and minor and the other male were the only individuals in that area wearing what appeared to be "darkish" clothing. Also, minor and Hall ran from Officer Orengo when he asked to speak with him. (See People v. Souza, supra, 9 Cal.4th at p. 235 [flight from police proper consideration].) Accordingly, the stop was predicated on several reasonable and articulable factors, and not merely based on race. (See In re Tony C. (1978) 21 Cal.3d 888, 896-898 [officer's knowledge that " 'three male blacks' " were being sought a day earlier for burglaries was insufficient to justify a stop of two African-American "school children" in a sidewalk in the neighborhood during the noon hour].)
Minor further contends that he was identified by a "questionable" cell phone app. In People v. Barnes (2013) 216 Cal.App.4th 1508 (Barnes) our colleagues in Division Two of this judicial district held "that the use of GPS technology in ascertaining the location of the stolen cell phone, and thus assisting in the locating of defendant was no violation of the Fourth Amendment." (Id. at p. 1519.) Although the court in Barnes was concerned with whether the use of ping technology violated a defendant's reasonable expectation of privacy rather than the constitutionality of a detention, the court noted that, as relevant here, "[c]orrelating defendant's observed movements with both the GPS location and the victims' description provided [the police officers] with ample reasonable suspicion for a detention. [Citation.]" (Barnes, supra, 216 Cal.App.4th at p. 1520.)
For a discussion on minor's challenge to the cell phone tracking information as new science lacking an appropriate foundation see section II.C., post.
On this record, an objectively reasonable person would suspect minor's involvement in the robbery based on the totality of the circumstances. We conclude there was sufficient reasonable suspicion to stop minor and detain him. B. The Pretrial Identification Procedure Did Not Violate Due Process.
Minor contends the evidence produced from the victim's in-field identification should have been suppressed because the procedure utilized by the police was unduly suggestive and otherwise unreliable under the totality of the circumstances. Alternatively, he argues that should we deem this challenge as forfeited by failing to file a motion to suppress the in-field identification, we should find his attorney rendered ineffective assistance.
The legal standards governing minor's first challenge are well-established. On appeal, we independently review a lower court's decision to admit such evidence to determine whether the procedure was unduly suggestive. (People v. Gonzalez (2006) 38 Cal.4th 932, 942; People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) The appellant then has the burden to show on appeal that the identification procedure was unreliable under a totality of the circumstances. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) Thus, " '[t]he 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 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.' (People v. Gordon (1990) 50 Cal.3d 1223, 1242.) In other words, '[i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.' (United States v. Bagley (9th Cir.1985) 772 F.2d 482, 492.)" (People v. Ochoa, supra, 19 Cal.4th at p. 412.)
We thus turn first to the issue of whether the identification procedure was unduly suggestive. " 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 413.) "Moreover, there must be a 'substantial likelihood of irreparable misidentification' under the ' " 'totality of the circumstances' " ' to warrant reversal of a conviction on this ground. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 990.)
Here, minor's claim of undue suggestiveness is based upon the fact that minor and his co-responsible were presented to the victim in a "cold-show." According to minor, "[t]he cold-show in this case, like every one-on-one cold show, was highly suggestive." He further claims this in-field identification was not necessary because the victim's injuries were not life threatening, such that the victim could have viewed a line-up after receiving medical attention. In making this claim, minor fails to acknowledge California Supreme Court authority holding that one-person show-ups may in fact be appropriate if, under the totality of circumstances, there is no unfairness demonstrated. (People v. Clark (1992) 3 Cal.4th 41, 136 ["a one-person showup or corporeal lineup, may pose a danger of suggestiveness, but such lineups or showups are not necessarily or inherently unfair. [Citations.] Rather, all the circumstances must be considered"].) Thus, as this authority instructs, we must look more closely at the relevant facts to determine whether, based upon the totality of circumstances, the procedure employed against minor was fair. The following record is relevant.
Within an hour of the robbery, Officer Ha asked the victim to participate in an in-field lineup involving possible suspects. After the victim agreed, Officer Ha delivered an admonishment instructing the victim that a person's detention and participation in a cold show did not necessarily mean that person committed the crime and in particular, that he was "under no obligation to identify anyone." The victim testified that he received this admonishment and understood what it meant.
The victim was then transported by ambulance to Golden Gate and Jones, to view the two detained suspects. Upon arriving, minor, who was not restrained at the time, was the first person presented in the cold show. The victim, seated in the ambulance about 30 feet from minor, said " 'That's him. I recognize his face. I recognize his nose, the gray hoodie, nose, chin, face. I recognize his figure too, skinny.' "
Having considered these undisputed facts, we conclude reversal of the juvenile court's judgment on the basis of the chosen show-up procedure is unwarranted because the requisite " 'substantial likelihood of irreparable misidentification' under the ' " 'totality of the circumstances' " ' " does not exist. (See People v. Cunningham, supra, 25 Cal.4th at p. 990.) Not only did the victim identify minor by his facial features, body frame, and clothing, he later confirmed minor's identification at the hearing. Moreover, the victim testified that during the attack he was able to observe the minor's body build, skin color, hair style, and teeth. The victim could also tell the attacker with the gun was a teenager or young adult. Finally, the victim testified that the during the robbery, which occurred in an area illuminated with street lights, the minor came within five feet of him before the minor ran straight into him.
In light of the victim's near certainty that minor was the perpetrator, the absence of any indication that the victim had trouble seeing minor during the robbery or the subsequent identification, and his recognition of minor's clothing and physical appearance, we conclude the identification procedure in this case was fair based upon the totality of circumstances. While minor correctly notes certain discrepancies or inaccuracies with respect to the victim's descriptions—to wit, those relating to minor's age (15 years old rather than the 25 to 30 age range, as reported by the CAD report), and minor's apparent lack of any facial injuries, despite the victim's testimony that he hit minor in the face with sufficient force to make the victim's hand swell. Minor also contends that the victim's identification of the second suspect was "highly problematic" due to the discrepancies in his weight (280 pounds rather than the "slim build" reported by the victim and the 150 pounds reported by the CAD report), height (six feet rather than five feet ten as reported by the CAD report), and clothing (light blue jeans and blue puffy coat rather than dark clothing and hoodie noted by the victim and CAD report). These differences, however, do not render the procedure constitutionally infirm. Rather, they go to the weight of the victim's testimony, a matter left to the sound discretion of the trier of fact. (People v. Miranda (2011) 199 Cal.App.4th 1403, 1414.)
Accordingly, we conclude the challenged evidence was properly admitted. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [appellant must prove "unfairness as a demonstrable reality, not just speculation"].) C. The Find My iPhone App Evidence Was Admissible.
Minor next argues that the juvenile court erred in permitting Officer Ha to give "what amounted to expert testimony" regarding the Find My iPhone App. According to minor, tracking a suspect's movements through cell phone tracking is new to science and the law, and there was no foundation laid at the hearing for admissibility of Officer Ha's testimony regarding the Find My iPhone App under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. U. S. (D.C. Cir. 1923) 293 F.1013 (Kelly-Frye).
Preliminarily, defense counsel argued below that Officer Ha did not have "the expertise as to how Find My iPhone works." This foundational objection to Officer Ha's testimony concerning minor's location based on the GPS technology was no more than a challenge to witness credibility. It was not an attack on the inherent reliability of the technology. (Barnes, supra, 216 Cal.App.4th at p. 1520.)
There was no Kelly-Frye motion by minor, for instance, challenging the scientific reliability of the GPS records or evidence. The matter is therefore not preserved for review. (Barnes, supra, 216 Cal.App.4th at p. 1519.) In any event, even assuming the issue had been preserved it fails on the merits.
Officer Ha's testimony regarding the Find My iPhone App did not result in improper expert witness testimony. The testimony was not offered for the purpose of explaining how the Find My iPhone App worked, and Officer Ha did not opine about the technological means by which the GPS tracking located the stolen phone. Instead, he testified that he input the victim's name and password in the application he had on his own phone to locate the victim's phone. In short, Officer Ha's testimony was not of matters so "beyond common experience" that his qualification as an expert was required. (See Evid. Code, § 801, subd. (a).)
Nor did Officer Ha's testimony require a Kelly-Frye analysis. The Kelly-Frye test applies to (1) expert testimony concerning a technique, process or theory new to science and to the law; and (2) unproven techniques or procedures that are presented as infallible, such as in the analysis of physical data. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1150 (Johnson) [use of database search to identify potential suspects, followed by DNA analysis, was a mere "investigative technique" for law enforcement rather than independent evidence presented to the jury of the defendant's guilt, and therefore not subject to Kelly-Frye].)
"In Kelly, the California Supreme Court held the admissibility of expert testimony based on 'a new scientific technique' requires proof of its reliability. [Citation.] To satisfy this requirement, the proponent of the testimony must show: (1) the technique has gained general acceptance in the particular field to which it belongs, (2) any witness testifying on general acceptance is properly qualified as an expert on the subject, and (3) correct scientific procedures were used in the particular case. [Citation.]" (Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254.) "The Kelly test is intended to forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. [Citation.] In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.]" (People v. Venegas (1998) 18 Cal.4th 47, 80.)
"[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly . . . ." (People v. Stoll (1989) 49 Cal.3d 1136, 1157; see People v. Cegers (1992) 7 Cal.App.4th 988, 999 [(Cegers)] [no "magical device was unveiled to astound a gullible jury"].) Kelly "only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." (People v. Stoll, supra, 49 Cal.3d at p. 1156; see, e.g., People v. Pride (1992) 3 Cal.4th 195, 239 [Kelly not applicable to hair comparison evidence that had been "routinely admitted in California for many years without any suggestion that it [was] unreliable"]; People v. Nolan (2002) 95 Cal.App.4th 1210, 1215 [Kelly not applicable to a urine testing device; urinalysis was not new, and other jurisdictions had accepted device's "validity for almost a decade"]; People v. Bury (1996) 41 Cal.App.4th 1194, 1201 [Kelly not applicable to a breathalyzer; technique was not novel, and breath tests for blood alcohol had "long been recognized by decisional law in California as scientifically valid"].)
It is simply not true, as minor contends, that the Find My iPhone App is new or novel scientific evidence; it is basically a tracking system that uses GPS technology. It is estimated that over 170 million Americans own cell phones (see Note, Who Knows Where You've Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators (2004) 18 Harv. J.L. & Tech. 307, 312, 313), and most of these phones are equipped with GPS tracking capabilities (see Note, At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants (2017) 90 S.Cal. Law Rev. 1299, 1308). GPS technology has been generally accepted and used for years. (Ibid.). Indeed, due to the "everydayness of GPS" courts routinely do not require expert testimony, but have taken judicial notice of this technology. (Ibid.)
"Commerical GPS units are widely available, and most modern cell phones have GPS tracking capabilities. Courts routinely rely on GPS technology to supervise individuals on probation or supervised release, and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology's accuracy." (United States v. Brooks (8th Cir. 2013) 715 F.3d 1069, 1078 [upholding the admission of evidence without expert testimony].)
For example, in United States v. Lizarraga-Tirado (9th Cir. 2015) 789 F.3d 1107, 1109 the Ninth Circuit suggested that courts could simply take judicial notice of Google Earth, in order to confirm the whereabouts of a defendant. Similarly, in People v. Rodriguez (2017) 16 Cal.App.5th 355, 376-377, the court held that testimony of a police officer adequately established a foundation for admitting GPS data of the defendant's location based on his ankle monitor. Other jurisdictions have held such tracking technology admissible without a conducting a Frye hearing. (See Carniol v. New York City Taxi and Limousine Com'n (N.Y. App. Div. 2015) 126 A.D.3d 409, 410-411 [Frye hearing not required for GPS evidence]; Still v. State (Fla. Dist. Ct. App. 2005) 917 So.2d 250, 251 [OnStar system not new or novel scientific evidence]; Brown v. State (Tex. App. 2005) 163 S.W.3d 818, 824 [holding GPS records sufficiently reliable]; State v. Vermillion (Wash. Ct. App. 2002) 112 Wash.App. 844, 847-848 [tracking device placed by bank teller in bag of stolen money did not require Frye hearing]; see also James Beck et al., The Use of Global Position System (GPS) and Cell Tower Evidence to Establish a Person's Location, 49 No. 1 Crim. L. Bull. art. 7, p. 15 (Winter 2013) ["The relatively unchallenged science behind GPS and the extensive, successful reliance on the technology during the past 30 years justify its admissibility in court"]; Gross v. State of Maryland (Md. App. 2016) 229 Md.App. 24, 35-36 [expert testimony not necessary to admit records of GPS data; officer's testimony sufficient to authenticate records]; United States v. Thompson (3d Cir. 2010) 393 Fed.Appx. 852, 859 [allowing a lay witness "to testify concerning the operation of [a] GPS device"].)
Moreover, the essential point of Kelly-Frye and its progeny is to guard against a jury's inclination to give considerable weight to scientific evidence presented with a " ' "misleading aura of certainty." ' " (Johnson, supra, 139 Cal.App.4th at p. 1147; Kelly, supra, 17 Cal.3d at pp. 31-32.) Here, the trier of fact was a judge, not a jury; Officer Ha's testimony was not expert witness testimony or even scientific evidence; and there was no "misleading aura of uncertainty," since the Find My iPhone App was not presented as some infallible "magical device." (See Cegers, supra, 7 Cal.App.4th at p. 999.) Rather, Officer Ha's testimony merely described law enforcement's investigative technique of inputting the victim's user identification to track a stolen phone.
In light of the everyday familiarity of cell phone and GPS technology, a Kelly-Frye on the reliability of the Find My iPhone App was unnecessary. D. Substantial Evidence Supports the Jurisdiction Order.
Minor contends that, even if the identification evidence was properly admitted (we have concluded it was), the evidence in the record, considered as a whole, was insufficient to establish that he was the perpetrator of the robbery. The following legal principles apply.
"On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.] ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Here, the record, described at length above, provides substantial evidence in support of the juvenile court's finding that minor was the person who committed the robbery in question. To briefly summarize, the victim twice identified minor as the perpetrator of the robbery—to wit, at the constitutionally-valid in-field showup, and again at the jurisdictional hearing. Specifically, the victim testified that, minor hit him in the face with a heavy gun, pressed the gun into his chest, then chased after him; after the co-responsible pushed the victim to the ground and immobilized him, minor, dressed in a dark hooded sweatshirt pistol-whipped him and demanded the victim's bag. Within 30 minutes after this crime, the victim's iPhone was tracked to Seventh and Market. Officer Orengo located minor and co-defendant in the area of where the victim's cell phone had pinged. At that time, although minor was wearing a gray hooded sweatshirt and jean with a distinctive print, his appearance reasonably matched the description of the suspect that the victim had given to police—to wit, a young, a 5 foot 10 inch, slim, black male wearing a dark hooded sweatshirt.
To the extent minor argues that the victim's vision may have been impaired because he was not wearing his glasses during the attack or the time of the cold show, we will not reweigh the evidence on appeal. The juvenile court stated it found the testimony of the victim to be "persuasive" and that he "[p]ositively identified" minor. No further evidentiary showing was required. (People v. Johnson (1980) 26 Cal.3d 557, 576 [" 'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. . . . The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt' "]; see also People v. Panah (2005) 35 Cal.4th 395, 489 [" 'uncorroborated testimony of a single witness is sufficient to sustain a conviction' "].)
There was no evidence as to whether the victim's prescription was for reading or for distance, or whether he was wearing contact lenses.
Substantial evidence supports the juvenile court's finding that minor committed the charged offenses. E. The Dispositional Proceedings Did Not Violate Due Process.
Minor next seeks reversal because he was not present at an unreported, in-chambers conference that occurred at the start of the dispositional hearing. According to minor, "the real dispositional hearing" occurred in chambers and the proceeding that followed was merely "formalistic window-dressing." The record belies this claim.
After calling minor's case, the juvenile court went off the record and took a recess. The record does not reflect the length of the recess or what exactly transpired in chambers. Once back on the record, defense counsel indicated that she would not be calling any witnesses, and she thanked the juvenile court for its "patience with this case [and] in keeping an open mind." The juvenile court then asked defense counsel if she wanted to make "any further argument," to which she replied "[n]ot at this time."
The juvenile court then addressed the minor, and explained that it was going to follow the probation department's recommendation that he be committed to the Log Cabin Ranch School. The court explained, in detail, how it arrived at this decision, noting that it had considered many different factors, including the possibility of an alternative placement. The court advised minor that it had read the disposition report, along with his school records. The court also took into consideration that minor had an "in-tact family with parents" who wanted him home. However, in light of the "very serious and violent" nature of the offenses he was found to have committed, coupled with his behavioral struggles in school, the Log Cabin Ranch School would provide the support minor required "in terms of both academics and behaviors; in terms of therapy, both individual therapy and family therapy; and . . . a safe place" for minor to learn new ways of interacting with peers and adults.
After explaining that the Log Cabin Ranch School functioned on a merit system, the court stated: "I am hopeful for you that-and most of the reason I am hopeful for you is I've heard stories, while we were talking in chambers, from your attorney about how adored and respected you are in your neighborhood; that you are relied upon a lot to help people, you help a lot around your home, you are good with doing chores and helping with the flea market, and neighbors value your presence. [¶] And so . . . that tells me . . . that not only do you have a lot to gain from Log Cabin Ranch, but you also have a lot to offer to others while you're there."
"The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state's citizenry is foremost among its government's interests, and it is squarely within the police power to seek to rehabilitate those who have committed misdeeds while protecting the populace from further misconduct." (In re Jose C. (2009) 45 Cal.4th 534, 555.) "When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider '(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history.' " (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.) The record reflects that the juvenile court did just that.
Minor makes vague references to the juvenile court's failure to file various "letters" submitted on his behalf. It appears that the letters in question were submitted by defense counsel at the conclusion of the jurisdictional hearing in support of a motion for his release pending the outcome of the dispositional hearing. The trial court denied the motion; neither the motion nor the letters are part of the record on appeal. We fail to see how the absence of the letters affected minor's right to be present at the dispositional hearing. We deem this issue forfeited on appeal. Arguments on appeal must be restricted to evidence in the record, as such any reference to matters outside the record on appeal generally will not be considered. (See Cal. Rules of Court, rule 8.204(a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.) Furthermore, "[a]ppellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]' [Citation.]" (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 (Nelson).)
Contrary to minor's suggestion, the dispositional hearing was not merely "formalistic window-dressing." Rather, the juvenile court conducted a thorough and thoughtful hearing in pronouncing the disposition in this case. Moreover, a defendant does not have a right to be present at every conference held during the course of a trial. (People v. Concepcion (2008) 45 Cal.4th 77, 81.) To prevail on a claim of this type, a criminal defendant must show that " 'his presence at the . . . conferences [from which he was excluded] bore a reasonably substantial relation to his opportunity to defend himself.' [Citation.]" (People v. Navarette (2003) 30 Cal.4th 458, 492.) Minor does not explain how his or his parents' absence adversely affected his disposition other than to speculate that had he and his parents been able to hear the "arguments made in favor of and against his removal from the family home," the outcome might "have been different." "That sort of vague speculation does not establish a breach of [minor's] statutory rights or a violation of his state or federal constitutional rights. [Citation.]" (People v. Navarette, supra, 30 Cal.4th at pp. 492-493.)
Similarly without merit, is minor's claim his constitutional rights were violated by the failure to report the in-chambers conference. Minor cites to no authority requiring in-chambers conferences be reported. Rather, citing People v. Reese (2017) 2 Cal.5th 660, he contends he was denied a complete reporter's transcript on appeal, including the arguments of counsel. Reese, however, does little to advance minor's argument. In Reese, our Supreme Court held that an indigent defendant facing retrial was entitled to a " 'full' " and " 'complete' " trial transcript, including opening statements and closing arguments. (Id. at 663.) There, unlike here, the issue was not whether the arguments should have been reported, but whether the indigent defendant was entitled to the transcripts free of charge. Moreover, even in capital cases, which—unlike the instant case—do require in-chambers proceedings to be reported (see Pen. Code, § 190.9, subd. (a)), failure to report such proceedings is not considered structural error (see People v. Taylor (2010) 48 Cal.4th 574, 660-661).
Here, as discussed, the juvenile court set forth in detail the factors in support and against minor's placement at the Log Cabin Ranch School. Substantial evidence supports minor's commitment. (In re Jose C., supra, 45 Cal.4th at p. 555.) We see no abuse of discretion in this placement decision. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Accordingly, on this record, any failure to report the in-chambers hearing would be harmless under any standard. F. Minor's Assault Conviction Must Be Stayed.
Minor contends the juvenile court violated section 654 by imposing consecutive sentences for the section 245, subdivision (a)(2) assault and the robbery. He maintains the assault was part of the same act as the robbery, and thus the court should have stayed the sentence for the assault by means of force likely to cause great bodily injury. We agree.
Section 654 provides in part: " 'An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .' " Section 654 "bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective . . . ." (People v. Norrell (1996) 13 Cal.4th 1-3, superseded in part by statute on another ground as stated in People v. Kramer (2002) 29 Cal.4th 720, 724.) The key inquiry focuses on the defendant's objective and intent attending the crimes; "[i]f [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Brown (1991) 234 Cal.App.3d 918, 933.)
In other words, " ' "[i]t is the singleness of the act and not of the offense that is determinative.' Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once." (People v. Mitchell (2016) 4 Cal.App.5th 349, 352-353 (Mitchell); see also People v. Corpening (2016) 2 Cal.5th 307, 316 [single act accomplished in carjacking and robbery of victim's van].) Section 654 applies to juvenile court dispositions. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3.)
" 'Robbery is the . . . taking of . . . property . . . accomplished by means of force or fear.' ([ ] § 211.) Accordingly, 'to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear.' " (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) This includes the use of force to retain possession of the property. (People v. Hill (1998) 17 Cal.4th 800, 850.) Whether there was more than one objective is a factual determination, and a trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
We conclude imposition of consecutive sentences for the assault and robbery lacks evidentiary support. The assault and robbery occurred essentially simultaneously. While temporal proximity of multiple crimes is not determinative of section 654, it is a relevant consideration in the analysis. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) If the minor had dual independent—rather than incidental—intents, the juvenile court did not articulate them, and we cannot ascertain them from the evidence. The assault on the victim was merely incidental to the single intent and objective in robbing the victim of his possessions. The assault ended the moment that the victim surrendered his messenger bag. Also, the force used did not exceed the amount of force needed to complete the robbery, and the assault ended once minor and his co-responsible gained control of the victim's property. (See, e.g. People v. Coleman (1989) 48 Cal.3d 112, 162-163 [assault distinct from robbery where assault occurred after robbery was completed]; People v. Cleveland (2001) 87 Cal.App.4th 263, 266-267 [beating feeble and elderly victim to unconsciousness with two-by-four plank far more than necessary to complete robbery such that attempted murder was not merely incidental].)
Nevertheless, the Attorney General argues that consecutive sentencing was appropriate because two distinct assaults occurred: one where minor hit the victim on the side of the face, causing him to drop his phone; and another where victim was chased, tackled, and pistol-whipped. This argument misses the mark. Minor was not charged with two assaults, nor was he convicted of two assaults. Rather, he was charged and convicted of two distinct crimes—one robbery count and one assault count. As minor correctly notes, that key inquiry is whether the assaultive conduct was incidental to the robbery. We conclude it was.
Since the assault was the means of committing the robbery, in calculating minor's maximum term of confinement, section 654 permits the use of only the term for the offense that provides for the longest potential term of imprisonment, i.e., the second degree robbery (§ 211) with the personal use of a firearm (§ 12022.53, subd. (a)) and great bodily injury enhancements (§ 12022.7, subd. (a)). (Mitchell, supra, 4 Cal.App.5th at p. 353.) Thus, minor's maximum term of confinement should not include his aggravated assault offense. Accordingly, the sentence for the assault and its attendant enhancement—committed during the same course of conduct as the robbery against the same victim—must be stayed under section 654. G. Minor's Claims of "Pervasive" Ineffective Assistance of Counsel and Cumulative Error Are Without Merit.
As a result, minor's contention that defense counsel furnished ineffective assistance in connection with this aspect of sentencing is moot.
On appeal, the minor claims that he received ineffective assistance of counsel below, because his attorney did not challenge the legality of his detention or the reliability of victim's identification of the minor, did not properly cross-examine the victim at the jurisdiction hearing, did not object to the disposition hearing being held "largely off-the-record in chambers," and did not advocate for any alternatives to out-of-home placement.
1. General legal Principles
The legal standard to show ineffective assistance of counsel is well established: the minor must show both that counsel's performance was deficient and that the performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); In re Julius B. (1977) 68 Cal.App.3d 395, 401 [minor has right to effective assistance of counsel in delinquency proceedings].) "To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.' [Citation.] A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. [Citation.] The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 104.)
"With respect to prejudice, a challenger must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' [Citation.] Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' [Citation.]" (Harrington v. Richter, supra, 562 U.S. at p. 104.) " 'Surmounting Strickland's high bar is never an easy task.' [Citation.] An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom. [Citation.]" (Harrington v. Richter, supra, 562 U.S. at p. 105.) "[E]ven if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." (Yarborough v. Gentry (2003) 540 U.S. 1, 8.)
2. Detention and In-Field Identification
Our conclusion regarding the constitutionality of minor's detention and the subsequent in-field identification defeats minor's alternative argument that his defense attorney rendered ineffective assistance by failing to move to suppress the challenged evidence. As mentioned above, regardless of whether defense counsel provided deficient legal assistance to a particular client, if "[the] defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (1998) 18 Cal.4th 349, 366.) Thus, because, for the reasons identified above, we conclude minor's detention was supported by reasonable suspicion and there was no substantial likelihood in this case of irreparable misidentification under the totality of the circumstances, there is no basis for minor's claim to have been prejudiced by his counsel's failure to move to suppress. (Strickland v. Washington, supra, 466 U.S. at p. 694 [reversal is warranted only if appellant proves a reasonable probability that, but for counsel's deficient performance, he would have achieved a different result].) Simply put, the detention and identification procedure employed in this case provides no basis for reversing the jurisdictional order, whether viewed for admissibility or effectiveness of assistance of counsel.
3. Cross-Examination of the Victim
Minor faults his attorney for failing to adequately cross-examine the victim about his testimony that he hit his assailant hard in the lip/nose area of the face with the butt of his pocket knife, yet minor's face was unmarred when he was detained. First, the failure to impeach a witness is a matter which usually involves a tactical decision on counsel's part and "seldom establish[es] a counsel's incompetence." (People v. Frierson (1979) 25 Cal.3d 142, 158.) Second, the record belies this claim. At the jurisdictional hearing, defense counsel elicited testimony from the victim that he hit minor with a powerful punch, using the butt end of the knife. The victim also testified on cross-examination that his hand was still swollen 30 minutes after the punch. The victim could not remember if the knife had any blood on it. Then, during closing arguments defense counsel noted that minor had no facial injuries or blood on his clothing, despite being hit by a punch with such force that the victim's hand was injured. Accordingly, we conclude defense counsel's performance did not fall below an objective standard of reasonableness. (Harrington v. Richter, supra, 562 U.S. at p. 103.)
4. Alibi Defense
Minor next claims that defense counsel "appears to have placed excessive reliance upon the alibi testimony, which was incomplete insofar as it did not take into account modes of transportation other than buses." In making this passing allegation, minor neither cites to the record nor provides any legal analysis. Accordingly, we could deem this issue as being forfeited on appeal. (See Nelson, supra, 172 Cal.App.4th at p. 862.) In any event, "[t]his decision was clearly a tactical choice and not subject to second-guessing by this court. [Citation.]" (People v. Haskett (1990) 52 Cal.3d 210, 250.) The challenge to counsel on the more specific grounds that counsel should have taken into account other modes of transportation, as well as other possible defenses, "is only a more oblique attack on the use of the alibi theory of defense in the first place. The reason for counsel's omission does not appear in the record on appeal; we must therefore reject the contention that counsel was ineffective in this regard. [Citation.]" (Ibid.)
5. Dispositional Hearing
Also in passing, minor claims defense counsel was ineffective for failing to object to the "off-the-record" proceeding at the dispositional hearing. We could deem the issue as forfeited (see Nelson, supra, 172 Cal.App.4th at p. 862), but nevertheless conclude it fails on the merits. As discussed, minor fails to establish that he was entitled to be present at the in-chambers conference or that he was prejudiced by his absence at the unreported conference. Moreover, the record reflects that defense counsel was at the in-chambers conference, where it appears she advised the juvenile court of minor's redeeming qualities. Since we can conceive of tactical reasons for counsel's conduct, minor cannot prove counsel's performance was deficient. (See People v. Anderson (2001) 25 Cal.4th 543, 569 [claim rejected where record affords no basis for concluding counsel's omission was not based on an informed tactical choice].)
6. Alternate Placement Options
Minor contends that defense counsel failed to explore services he could have received while remaining at home and did not advocate for such services as an alternative to out-of-home placement. Again, this argument is presented without legal analysis or authority and could be deemed forfeited. (See Nelson, supra, 172 Cal.App.4th at p. 862.) It appears to be mentioned as an example of what minor refers to as the "negative synergy" created by the "pervasiveness of the ineffective assistance in this case." In any case, the dispositional report reflects that minor's mother was offered services but refused to follow through with the requisite assessment. The dispositional report further noted that minor had been referred to Child Protective Services (CPS) in March 2016, following numerous school incidents of truancy and aggressive behavior. It was reported that the family avoided the CPS case worker for several months. When the case worker was finally able to contact the family, the parents did not want to participate in any services. According to the report, parents "had no control over the minor, and he stayed out when he wanted and return[ed] when he wanted." Attached to the dispositional report were approximately 20 pages of school records, documenting the minor's behavioral struggles and academic challenges. It was further reported that minor had two previous instances of violence in the community, to wit: one where he punched a San Francisco Muni bus driver, and another when he robbed and threatened physical violence to an 11 year-old. In light of the severity of the charged offenses, together with minor's behavior in the community and in school, the probation department recommended commitment at the Log Cabin Ranch School.
Minor had two Fs, two Ds, and one C, for a grade point average of 0.67 out of 5.0.
At the dispositional hearing, the juvenile court stated it had read the probation department's report, as well as the minor's school records. The juvenile court advised minor it had considered a possible alternative placement, but after considering "a lot of different factors" it decided to follow the probation department's recommendation that he be committed to the Log Cabin Ranch School. On this record, it is not reasonably probable that a request for in-home placement would have been granted had one been asserted.
7. Cumulative Error
Finally, minor contends that he was deprived of his right to effective assistance of counsel and a fair trial through counsel's errors, both individual and cumulative. However, having found no ineffective assistance in any of the individual claims of error, we necessarily reject his claim of cumulative error. (People v. Gurule (2002) 28 Cal.4th 557, 662.)
IV. DISPOSITION
The judgment is modified to set minor's maximum term of confinement at 18 years, consisting of the high term of five years for the second degree robbery, plus ten years for the personal use of a firearm and three years for the great bodily injury enhancements attached to that offense. As modified, the judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------