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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 had happened.

"Q. Okay.

"A. And then at the same time, I'm thinking about the pictures and seeing the resemblance and comparing them. . . . [¶] . . . [¶] I am comparing them to see which one like catches me most that is like that person, you know.

"Q. Okay. And lastly, do you see the person that did this to you on the bridge in court here today?

"A. Yes. [Witness pointed to E.M.]"

On cross-examination, C.S. testified:

"[Q.] [W]hen the officer showed you . . . the photos, . . . is that what you were trying to do? Look at the eyes of the six people, the six photographs, and pick the one that looked the most like you remember the robber looking?

"A. Yes."

Fourteen-year-old A.S. testified a policeman brought six photographs to his home. A.S. testified:

"Q. Were you able to pick out the person that did this to you from the set of photographs?

"A. Yes."

Over defense objection that the photo lineup was leading and suggestive, the prosecutor showed A.S. the photographs in court and asked, "Do you see the person that took your stuff in that set of six?" A.S. identified photograph number three (E.M.'s photograph). When asked, "Do you see the person that did this to you in court here today?" the witness answered "Yes" and pointed to E.M.

A.S. testified on cross-examination:

"Q. Did you say anything to the officer when you picked that? Did you say, oh, I think this is the person or this looks most like the person or what do you recall?

"A. It looks most like the person.

"Q. It looks most like the person that you saw out on the bridge that day?

"A. Yes."

A.S. then testified:

"Q. . . . So when you looked at the photographs that the police officer showed you, you were looking -- were you concentrating on the eyes and trying to pick the eyes that looked most like the person you had seen out there on the bridge?

"A. Yes."

Eleven-year-old C.R. testified the policeman who came to her school and showed her some photographs, said the robber may or may not be there and asked her to try to remember if she recognized anyone. She saw one photo that "did look like the person who did this" -- photo number three (E.M.'s photo). Defense counsel repeated his objection and added, "I didn't mention this previously when I objected, but I think the significant factor is the testimony that the witness was only able to see the person's eyes that was the person asking about the money." The court said that had been "well established" and overruled the objection.

C.R. looked at the photos in court and, when asked "Do you see the person in those six photos that did that to you out on the bridge?" she said "[y]es" and indicated E.M.'s photo. When asked, "Do you see that person in court here today?," she said yes and pointed to E.M. On cross-examination, C.R. agreed that, when the policeman showed her the photos, she picked the one she "thought looked most like the eyes of the person [she] had seen."

The police detective who showed the victims the photo lineup testified he used a clean, unmarked copy for each witness. He showed the lineup to each victim separately and told each victim not to discuss whether or not s/he had identified anyone with the other two. Each chose E.M.'s photo. Before showing each witness the photo lineup, the detective read them a Simmons admonition (Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247]), reprinted on the photo lineup itself. The admonition stated:

"'In a moment I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hair styles, beards, and moustaches may be easily changed. Also, photographs may not always depict the true complexion of a person -- it may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photos or any other differences in the type or style of the photographs. When you have looked at all the photos, tell me whether you see the person who committed the crime. Do not tell other witnesses that you have or have not identified anyone.'"

In closing argument to the judge as the trier of fact, defense counsel agreed the victims made good witnesses but argued each victim's in-court identification was based on the comparison of E.M. at the defense table to the photo they previously had selected as having the eyes that looked most like the robber's eyes. The victims did not even describe the robber's height or weight.

The prosecutor argued, "the odds of independently three witnesses at separate times and places all coming up with an identification of the minor . . . -- it is just overwhelming." The defense argued "odds" is not the standard. The court indicated it understood the standard. The court found the minor had committed the charged offenses, stating "it is the combination of all three witnesses -- that does make it rise to the level of beyond a reasonable doubt."

The juvenile court ordered the minor into custody of the Department of Juvenile Justice. For the instant case, the term was three years for the robbery, plus 10 years for the gun enhancement, plus eight months for each of the two attempted robberies, with the brandishing misdemeanors stayed under Penal Code section 654. When added to the minor's other cases, the maximum term of confinement totaled 15 years 10 months.

DISCUSSION

We begin by stressing what this case is not about. On appeal, E.M. does not challenge the photo lineup as unduly suggestive or unfair, and he does not assign evidentiary error to use of the photos in court. E.M.'s only contention on appeal is that the evidence is insufficient to support the judgment, because the evidence "distilled down to three children believing that the robber's eyes looked like the eyes of [E.M.] as depicted in" the photo lineup. We will conclude the evidence, though scant, is sufficient.

The same standard of review that applies in adult criminal proceedings applies to a minor's challenge to the sufficiency of evidence supporting jurisdictional findings of the juvenile court under Welfare and Institutions Code section 602. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the [trier of fact's] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"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. [Citation.]"' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; see also People v. Johnson (1980) 26 Cal.3d 557, 578.)

"[A] child's testimony cannot be deemed insubstantial merely because of his or her youth." (People v. Jones (1990) 51 Cal.3d 294, 315.) Here, defense counsel agreed in the juvenile court that the victims made good witnesses.

On appeal, E.M. says the evidence was insufficient because it "distilled down to three children believing that the robber's eyes looked like the eyes of [E.M.] as depicted in picture three of the six-pack photo lineup. [E.M.] was a [B]lack man, so presumably his eyes were brown. No evidence was presented as to what aspect of [E.M.'s] eyes resembled the robber's eyes."

Yet E.M. ignores the in-court identification and cites no authority supporting reversal. He merely cites case law for the general proposition that eyewitness identifications are often unreliable. (United States v. Wade (1967) 388 U.S. 218, 228, 237-238 [18 L.Ed.2d 1149] [federal Constitution grants defendants a right to counsel at pretrial lineups]; People v. Cardenas (1982) 31 Cal.3d 897, 909-910 [cumulative prejudice resulted from trial court's erroneous admission of evidence regarding gangs and drug addiction, where the only evidence incriminating defendant was eyewitness identification testimony]; People v. Bustamante (1981) 30 Cal.3d 88, 98 [discussing right to counsel at preindictment lineup], abrogated by constitutional amendment on other grounds as stated in People v. Cook (2007) 40 Cal.4th 1334, 1353.)

However, we may reject the trier of fact's finding that E.M. was the perpetrator only if it is "physically impossible or inherently improbable." (People v. Young (2005) 34 Cal.4th 1149, 1181 [uncorroborated testimony of a single witness is sufficient to sustain conviction].) This rule applies to identification testimony. (People v. Boyer (2006) 38 Cal.4th 412, 480.) To be inherently improbable, the inaccuracy of the testimony "'"'must be apparent without resorting to inferences or deductions.'"'" (People v. Sassounian (1986) 182 Cal.App.3d 361, 409.)

"To entitle a reviewing court to set aside a [trier of fact's] finding of guilt, the evidence of identity must be so weak as to constitute practically no evidence at all. [Citations.] . . . [W]here there is positive direct testimony that the defendant was one of the perpetrators of the crime, it is incumbent upon [the defendant] to show that the testimony is inherently unbelievable in order to prevail." (People v. Braun (1939) 14 Cal.2d 1, 5; accord, People v. Shaheen (1953) 120 Cal.App.2d 629, 636-637.) In Braun, the defendant was convicted of armed robbery based on the eyewitness testimony of three witnesses. (Braun, supra, 14 Cal.2d at pp. 3-4.) The judgment was reversed on other grounds. However, regarding substantial evidence, the court said: "It must be conceded that the evidence tending to connect this defendant with the crime is not entirely convincing. Certainly the victims had only a very limited opportunity to observe their assailants. Moreover, [their testimony was inconsistent]. On the other hand, these witnesses were presumably disinterested and had no reason to fabricate testimony in order to obtain the conviction of the defendant. . . . Considering all of the evidence, it cannot be said, as a matter of law, that the testimony of the three [witnesses] was so improbable as to be unworthy of all belief." (Id. at p. 5.)

In People v. Williams (1959) 53 Cal.2d 299, two robbers each wore a handkerchief over the lower part of his face, sunglasses, a hat and gloves. (Id. at p. 301.) Witnesses identified the defendant as one of the robbers based primarily on his unusual profile (pointed features and a large nose that could be seen under the mask), his thin build, stature and "slouch walk." (Id. at p. 302.) In affirming the judgment, the Supreme Court said that where the witnesses positively identified the defendant as the perpetrator, "[a]ny claimed weakness in their identification testimony because of the handkerchief masks worn by the robbers was a matter for argument to the jury, and cannot be effectively urged on appeal. [Citations.]" (Id. at p. 303.)

In People v. Redmond (1969) 71 Cal.2d 745, our high court reversed a judgment of conviction (id. at p. 760), but there the witness at the lineup, though stating there was "'an expression across the eyes that I recognized'" (id. at p. 756), said she was unable to identify the person as the perpetrator. (Id. at p. 760.)

Here, even if we disregard C.R.'s in-court identification (because the prosecutor asked if she saw "that person" in court without specifying the person on the bridge or the person in the photograph), the in-court identification by the other two victims (pointing to E.M. as the person on the bridge) suffices. They stood close enough to see the robber's eyes. Granted, the gun may have elevated the victims' stress level, and C.S. testified she was "kind of shaking and kind of panicked." Nevertheless, this does not render the testimony inherently improbable or unreliable. And we note there is no evidence in the record suggesting the build of E.M. in court was inconsistent with the robber, whom the victims saw bare-chested on the bridge.

The People, citing C.S.'s testimony that the robber had the gun to A.S.'s hip "[p]robably for about five to seven minutes," assert the robber interacted with the victims for "at least" five to seven minutes. We do not need to rely on C.S.'s estimate of duration. It suffices for purposes of this appeal that the victims had ample time and opportunity to observe the robber.

Since the positive identifications in court constitute sufficient evidence, we need not address the out-of-court identifications in which the victims picked the photo that "most resembled" the robber. Nevertheless, we observe the qualified identifications may constitute evidence supporting a judgment. In People v. Wiest (1962) 205 Cal.App.2d 43, one witness made a positive identification at trial, but the other two witnesses testified that the defendant "'resembled'" one of the perpetrators. (Id. at p. 45.) Wiest said "In order to sustain a conviction the identification of the defendant need not be positive. [Citations.] Testimony that a defendant 'resembles' the robber [citation] or 'looks like the same man' [citation] has been held sufficient. . . . The qualification of identity and lack of positiveness in the testimony of any of the witnesses were matters going to the weight of the evidence and the credibility of the witnesses and were for the observation and consideration of the [trier of fact] . . . ." (Id. at pp. 45-46.)

We recognize Vukman v. Superior Court (1981) 116 Cal.App.3d 341, held a victim's out-of-court selection of the accused's photo as the person who "'looks like'" the robber was insufficient to hold the accused to answer. (Id. at p. 345.) There, however, the victim was unable to identify the perpetrator at the preliminary hearing, and the law at that time required corroboration in such circumstances -- a requirement eliminated by the Supreme Court in People v. Cuevas (1995) 12 Cal.4th 252, 275, footnote 5, which expressly disapproved Vukman. The court in Cuevas said, "the availability of the identifying witness for cross-examination, the opportunity of the defense to present other evidence questioning the reliability of the out-of-court identification . . . and the requirement that substantial evidence support the conviction are adequate safeguards against the unjust conviction of a defendant solely on the basis of an unreliable out-of-court identification." (Id. at pp. 274-275.)

We conclude substantial evidence supports the juvenile court's decision.

DISPOSITION

The judgment (order) is affirmed.

We concur: ROBIE, Acting P. J. BUTZ, J.


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