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In Re E.M., A Person Coming Under the Juvenile Court Law. v. E.M

August 5, 2011

IN RE E.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
E.M., DEFENDANT AND APPELLANT.



(Super. Ct. No. 67024)

The opinion of the court was delivered by: Murray, J.

In re E.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Minor E.M. appeals from a juvenile court disposition finding that he committed a robbery and attempted two other robberies; and that he personally used a firearm and brandished a weapon. (Pen. Code, §§ 211, 664, 12022.5, 12022.53, 417; Welf. & Inst. Code, §§ 602 [minor violating criminal law may be adjudged a ward of the court], 800 [wardship adjudication is appealable].) E.M.'s sole contention on appeal is that the victims' identification of him as the masked perpetrator did not constitute substantial evidence. We will conclude that it cannot be said, as a matter of law, that the identifications were so improbable as to be unworthy of all belief. We will therefore affirm the judgment (order).

FACTUAL AND PROCEDURAL BACKGROUND

On appeal, the minor sets forth a chronology of his multiple wardship proceedings, including proceedings that are not at issue in this appeal. The minor says he includes them because the juvenile court factored the "totality of [the] circumstances" into the disposition and maximum period of confinement. However, the minor makes no assignment of error regarding the maximum period of confinement or the other proceedings. We confine ourselves to the adjudication challenged on appeal.

In May 2010 (a week before the minor's 16th birthday) the prosecution filed a juvenile wardship petition alleging the minor had committed one count of robbery (Pen. Code, § 211),*fn1 two counts of attempted robbery (§§ 664, 211), all with personal use of a firearm (§§ 12022.5, 12022.53, subd. (b)), and three counts of misdemeanor brandishing of a firearm (§ 417, subd. (a)(2)).

At the contested jurisdictional hearing, the only evidence connecting E.M. to the crimes was his identification by the three victims.

The evidence revealed that on March 28, 2010, around 5:00 p.m., the three victims -- a 14-year-old male, A.S., and two females, 12-year-old C.S. and her sister, 11-year-old C.R. -- were walking near a bridge and stopped to look at some newborn kittens on the ground. A Black male approached, bare-chested and wearing blue jeans, with a black T-shirt pulled over his entire head, leaving only his eye area exposed through the neck hole of the T-shirt, such that the victims could see only the portion of the man's face from the middle of his forehead to the middle of his nose. The man came to within five feet of the victims, who stood within touching distance of each other, and asked a few times, "Where's your money[?]" A.S. said he did not have any. The man then pulled out a gun, put the gun to A.S.'s hip, went through A.S.'s pockets, and took A.S.'s cell phone and iPod. He then looked at C.S. and C.R. and asked several times if they had anything. They said no. With the T-shirt still over his head, the man backed away, saying, "You guys don't say anything" and ran away.

In court in June 2010, each of the three victims positively identified E.M. as the perpetrator. Each in-court identification occurred after each witness in court identified E.M. from a six-person photo lineup -- the same photo lineup previously shown to the witnesses by a police detective a month or so after the incident, from which each witness separately had identified E.M.'s photo as most resembling the robber.

Twelve-year-old C.S. testified in court that the robber, who looked like a man, stood close enough to touch. She made eye contact with him. He asked several times if they had anything. A month or so after the incident, a policeman came to C.S.'s school and showed her six photographs after giving her some warnings she could not remember in court. She "identified" one of the photos. The prosecutor showed C.S. the photo lineup in court, over defense objection that the exhibit did not show which photo she had picked and "it [was] highly suggestive to show her six photographs, one of which is a photograph of the minor sitting in court, without any indication as to what she -- ." The court said it was probably better for the defense that the exhibit did not show which photo she previously had identified. C.S. was shown the photos and testified:

"Q. Can you tell us which number, if any, resembles the person that did this on the bridge?

"A. Three [E.M.'s photo].

"Q. Okay. When you are looking at those photographs, are you concentrating on any particular part of the face?

"A. Yes.

"Q. Okay. How are you doing that?

"A. Well, I am looking back to what ...


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