Opinion
H042832 H043128
03-14-2017
In re N.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 3-14-JV4067)
The juvenile court adjudicated N.S. (minor) a ward of the court after she committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), misdemeanor burglary (§§ 459, 460, subd. (b)), and first degree burglary (§§ 459, 460, subd. (a)) on separate occasions. On appeal, minor argues the robbery victim's in-court identification of her was tainted by the police's prior use of an unduly suggestive single photograph lineup. She also argues the condition of her probation prohibiting her from associating with known gang members is unreasonable. We conclude the single photograph lineup was not unduly suggestive and, even if it was, the victim's identification was reliable under the totality of the circumstances. However, we do agree with minor that the probation condition prohibiting association with gang members was unreasonable. There is nothing in the record to indicate minor's offense was gang-related, and minor has no history of gang affiliation or ties with gang members. Accordingly, we strike the probation condition and, as modified, affirm the appealed orders.
Unspecified statutory references are to the Penal Code.
BACKGROUND
1. The "A" Petition
On May 28, 2014, 13-year-old Johnathon B. was walking home from the "Boys & Girls Club" when two girls and a boy approached him. The two girls included an African-American girl who weighed approximately 300 pounds and a Latina girl, later identified as minor, who was wearing a sweater and a hat. Johnathon believed both girls were approximately 13 years old. He recognized both the African-American girl and the boy. He had classes with the boy and was friends with the African-American girl. Minor and the boy told Johnathon to empty his pockets. Johnathon noticed minor was holding a pocketknife.
The boy asked Johnathon if he had a phone. Johnathon told the boy he did not have a phone, but he had an iPod in his pocket. Minor told Johnathon she would stab him if he was lying. Minor reached into Johnathon's pockets and took approximately $2 or $3. Johnathon asked minor if she could give him his money back. Minor told him no and reiterated she would stab Johnathon if he was lying.
Johnathon told the group that he had items in his backpack that he could give to them. When the group was distracted, Johnathon ran towards his house. Minor and the boy chased after Johnathon, and the African-American girl ran in the opposite direction. Johnathon yelled for help, and his father came out of the house. Once Johnathon's father came out of the house, minor and the boy ran away.
Afterwards, Johnathon called the police. The robbery had occurred at approximately 4:30 p.m. Two officers, including Officer Dainiul Morales, arrived at Johnathon's house at around 5:00 p.m. Johnathon told the officers what happened, and the officers set off to investigate. An officer at Johnathon's school was given a description of the suspects and texted the investigating officers the suspects' photos. The investigating officers returned to Johnathon's house approximately a half an hour later, at around 5:30 or 6:00 p.m. When they returned, they showed Johnathon photos of the African-American girl, the boy, and minor. Before showing Johnathon the photos, the officers advised Johnathon they were going to show him pictures of several suspects. They told Johnathon it was okay for him to say that the individuals depicted in the photos were not the ones who robbed him. Officer Morales testified he did not praise or pressure Johnathon during the identification process.
Johnathon identified all three photos as depicting the three people who had robbed him. He was first shown a photo of the African-American girl, who he identified by first name. He was then shown a photo of the boy, who he recognized from school. Lastly, he was shown a photo of minor. Johnathon identified minor after hesitating for approximately 30 seconds to a minute. Johnathon explained that he hesitated, because minor had been wearing a hat during the robbery but was not wearing a hat in the photo he was shown. Johnathon had not seen minor before, and minor's clothing was different in the photograph. He said he did not feel pressured to make an identification. At the time, only three photographs were shown to Johnathon.
Minor had a twin sister who attended the same school.
On July 2, 2014, a juvenile wardship petition (Welf. & Inst. Code, § 602) was filed alleging that minor had committed second-degree robbery (§§ 211, 212.5, subd. (c)) while personally using a dangerous and deadly weapon (§§ 667, 1192.7). On August 10, 2015, the juvenile court sustained the allegations in the petition following a contested jurisdictional hearing.
Minor did not contest the "B" petition. Accordingly, we derive our facts from the summary found in the probation report.
On January 28, 2015, Stefanie T. found minor and three other suspects inside her car without her permission. When Stefanie attempted to detain minor, all four suspects assaulted her by punching her several times in the face with closed fists. Stefanie suffered from lacerations to her left eye and complained about pain to her face and to her head.
On January 29, 2015, a juvenile wardship petition was filed alleging minor had committed assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), burglary of a vehicle (§ 459), and misdemeanor battery (§ 242). On August 10, 2015, the count of burglary of a vehicle was amended to allege misdemeanor burglary. As amended, minor admitted the allegation. The remaining two allegations were dismissed.
On August 24, 2015, the juvenile court held a dispositional hearing on both the "A" and the "B" petitions. Minor was declared a ward of the court and was placed under the supervision of her probation officer subject to various terms and conditions, including a condition that she not knowingly associate with any person who she knows to be, or her probation officer informs her to be, a gang member.
Minor did not contest the "C" petition. Accordingly, we derive our facts from the probation report.
On September 25, 2015, officers responded to report of a possible residential burglary in process. The victim reported that minor and a male suspect had knocked on his door. The victim did not answer the door, and he saw minor put a dark cap over her head and walk into his backyard. Officers detained both minor and the male suspect and determined that a burglary had occurred. A rear sliding door was unlocked and the master bathroom had been forced open. The master bedroom was ransacked. A search of the male's backpack revealed a laptop and an iPad that were owned by the victim. An iPad from the victim's home was found in minor's jacket.
A juvenile wardship petition was filed on September 29, 2015, alleging minor committed first degree burglary (§ 459). On October 15, 2015, minor admitted the allegation. On November 10, 2015, minor was continued as a ward of the court. Her maximum time of confinement was deemed to be seven years four months. Minor was placed at the Santa Clara County Juvenile Rehabilitation Facility.
Minor appealed the disposition for the "A" and "B" petitions in case No. H042832. She appealed the disposition for the "C" petition in case No. H043128. We ordered these two appeals considered together for the purposes of briefing, argument and disposition.
DISCUSSION
1. The In-Court Identification
Minor argues that Johnathon B.'s in-court identification of her as one of the assailants that robbed him was tainted by the officers' prior use of a single photograph lineup, which she claims was unduly suggestive.
"A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification. The defendant bears the burden of proving unfairness as a 'demonstrable reality,' not just speculation." (People v. Contreras (1993) 17 Cal.App.4th 813, 819 (Contreras).) Thus, the threshold issue is whether the identification procedure was unduly suggestive and unnecessary. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If a court determines that the identification procedure was unduly suggestive and unnecessary, then it must evaluate whether the identification was nevertheless reliable under the totality of the circumstances. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) When examining whether an identification is reliable under the totality of the circumstances, we " 'tak[e] 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.' " (People v. Kennedy (2005) 36 Cal.4th 595, 608 (Kennedy), disapproved of on another point in People v. Williams (2010) 49 Cal.4th 405, 459.) We independently review the trial court's ruling that a pretrial identification procedure was not unduly suggestive. (Kennedy, supra, at p. 609.)
Preliminarily, minor argues the police's use of a single photograph lineup is presumed to be unduly suggestive. We disagree. Without doubt, there are numerous cases that have "condemned the use of a single photo identification procedure." (Contreras, supra, 17 Cal.App.4th at p. 820; United States v. Cueto (5th Cir. 1980) 611 F.2d 1056, 1064.) For example, single person show-up procedures are considered unfair when they are not neutral, and unnecessarily suggest to the witness in advance the identity of the person suspected by the police. (People v. Yeoman (2003) 31 Cal.4th 93, 123-124; Ochoa, supra, 19 Cal.4th at pp. 412-413; People v. Slutts (1968) 259 Cal.App.2d 886, 891.)
Courts, however, have also consistently held that under certain circumstances a single photograph lineup is not inherently unfair or impermissibly suggestive. (Ochoa, supra, 19 Cal.4th at pp. 413, 425-426.) In fact, "numerous cases have found no due process violation from the admission of evidence of identifications made either at the time of or subsequent to a single photo showup." (Contreras, supra, 17 Cal.App.4th at pp. 820-821.) Furthermore, courts have determined that showing a witness a single photo of a defendant "is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom." (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) Single-person identification procedures are also justified when they occur promptly after the commission of the crime, because it is likely that under these circumstances an identification will be more accurate than an identification that takes places days or weeks later. (See People v. Cowger (1988) 202 Cal.App.3d 1066, 1071.)
Thus, not all single photograph lineups are presumed to be unduly suggestive. In order to determine if minor's due process rights were violated, we must look to the totality of the circumstances of the identification procedure. If the challenged procedure is not impermissibly suggestive, the due process claim fails. (Ochoa, supra, 19 Cal.4th at p. 412.)
Minor argues that the totality of the circumstances suggests that her case closely resembles those in which courts have found that single photograph showings are unduly suggestive. In support, minor first relies on In re Hill (1969) 71 Cal.2d 997, 1004-1005. In Hill, the defendants claimed a witness's in-court identification was tainted by an unduly suggestive pretrial show-up conducted by the police. (Id. at p. 1002.) During the day of the defendants' preliminary hearing, police officers brought the witness in to a courthouse in order to make identifications. When the witness reached the courthouse, officers told him they wanted to see if he could identify the perpetrators of the crime. (Ibid.) The witness was taken to a holding cell behind the courtroom where the defendants were the sole occupants. (Ibid.) Subsequently, the witness identified the defendants as the ones who had robbed and assaulted him. (Ibid.) The California Supreme Court determined the "isolation method of identification" strongly suggested to the witness that the defendants, who were alone in the jail cell, were the perpetrators of the crime. (Id. at p. 1005.) Additionally, there were no compelling reasons for the officers to exhibit the defendants alone in the jail cell to the witness. (Ibid.)
Similarly, minor also relies on Manson v. Brathwaite (1977) 432 U.S. 98. There, the Supreme Court concluded that showing a single photograph of a suspect to a witness was unduly suggestive and unnecessary, because there were no emergency or exigent circumstances warranting the identification procedure. (Id. at p. 110.)
Again, Hill and Manson do not stand for the proposition that all single photograph lineups are unduly suggestive. It is only in certain circumstances that such identification procedures are unduly suggestive and unnecessary. Contrary to minor's claim, cases like Hill and Manson are distinguishable. Here, officers showed Johnathon the photographs shortly after the crime occurred, approximately 60 minutes after the event. The exigency of the circumstances warranted the prompt single-photo lineup, when the crime was still relatively fresh in Johnathon's mind. Furthermore, Officer Morales testified that he did not make suggestive comments; instead, he admonished Johnathon that the individuals shown to him in the photographs might not be the perpetrators. The photographs were displayed to Johnathon in an objective manner, and there was no suggestion that minor was indeed the person suspected by the police. Additionally, the neutrality of the photograph lineup utilized here stands in sharp contrast to the suggestiveness of the procedure that took place in Hill, where the witness was asked to identify suspects and was then shown the defendants while they were in a jail cell. Accordingly, minor has not shown the single photograph lineup was unduly suggestive as to give rise to a substantial likelihood of misidentification.
Minor, however, insists that the order in which the photos were shown to Johnathon implied her guilt. Minor points out that Johnathon was first shown the photographs of the African-American girl and the boy, both of whom he recognized from past contacts. Therefore, minor insists that when police presented Johnathon with minor's photograph, it necessarily suggested to Johnathon that "since the police got the first two suspects right they must have gotten the third right as well."
Minor's argument is based solely on conjecture, and she must show unfairness as a " 'demonstrable reality,' " rather than mere speculation. (Contreras, supra, 17 Cal.App.4th at p. 819.) There is nothing in the record that indicates Johnathon felt pressured to identify minor as the third suspect due to the order of the photographs he was shown. At the jurisdictional hearing, Johnathon testified he was admonished that the photographs he was going to see may or may not depict the individuals who robbed him. And, as noted before, Officer Morales testified he specifically told Johnathon it was permissible for him to say that the photographs he was shown did not match with the suspects who committed the crime. Officer Morales did not praise or pressure Johnathon during the identification process, and Johnathon testified he did not feel pressured to make an identification. Based on these circumstances, we do not find the order of the photographs presented to Johnathon somehow suggested minor's guilt.
Minor claims that in certain situations, the victim's past contacts with the identified suspect ameliorates the suggestiveness of a single photo lineup. Thus, minor argues the converse must also be true—that because Johnathon did not know minor, the identification procedure was somehow more suggestive.
We disagree. When evaluating whether an identification procedure is unduly suggestive, " '[t]he question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness would select him.' " (People v. Cunningham (2001) 25 Cal.4th 926, 990.) There is nothing to suggest that showing a victim a photograph of a suspect they have not seen before conveys to the victim that the photograph does indeed depict the perpetrator of the crime. We fail to see how this procedure would be unduly suggestive, especially when the victim is specifically told the photograph may not actually depict the responsible suspect. Thus, applying an independent standard of review, we agree with the trial court's conclusion that the identification process was not unduly suggestive.
Furthermore, even assuming the identification process was unduly suggestive, we agree with the trial court that the identification was still reliable under the totality of the circumstances. When evaluating the reliability of the identification, we " 'tak[e] 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.' " (Kennedy, supra, 36 Cal.4th at p. 608.)
During the jurisdictional hearing, Johnathon testified that minor was only about a foot or a foot and a half away from him during the robbery. When he viewed the photograph of minor, about an hour had elapsed. Thus, the lapse in time between the offense and Johnathon's identification was not long. Additionally, Officer Morales testified that Johnathon did hesitate when identifying minor. Johnathon said it took him 30 to 60 seconds to identify minor, but explained his hesitation stemmed from the fact that minor was wearing different clothes and a hat during the robbery. The identification was also consistent with Johnathon's previous description of minor as a Latina.
Minor argues that Johnathon did not provide testimony about how certain he was that the photograph depicted the suspect, nor did he provide testimony that distanced his in-court identification from the single photograph lineup. Nonetheless, during the jurisdictional hearing Johnathon did confirm that after some hesitation, he identified minor as one of the perpetrators of the crime. Johnathon also reiterated that his identification of minor's photograph as depicting one of the individuals who robbed him was consistent with his opinion on the day of the robbery. Additionally, Johnathon independently identified minor during the jurisdictional hearing. He specifically testified that his in-court identification of minor as one of the robbers was consistent with his recollection of the crime. There was no testimony that his in-court identification was influenced by the single photograph display.
Lastly, minor claims that Johnathon's age and the stress of the robbery reduced the reliability of his identification. Although Johnathon testified he felt intimidated and fearful when he saw minor had a knife, he did not say he felt stressed when he identified minor in the photograph or that his fear hindered his observation of the suspects. In fact, Johnathon asserted that shortly after his initial reaction of fear, he "clicked into the smart role of . . . how to solve the situation the best" after he realized he was being robbed. Thus, the record does not support minor's contention that Johnathon's identification was made under duress. Similarly, there is nothing in the record to indicate that Johnathon's age somehow created a more unreliable identification.
Accordingly, we find that admission of Johnathon's identification of minor as a perpetrator of the robbery did not violate minor's constitutional due process rights.
2. The Gang Association Probation Condition
Next, minor challenges the reasonableness of the probation condition prohibiting her from associating with known gang members. The trial court imposed the condition after minor objected to the condition as having no nexus to her offense or to her social history.
A "condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486.) As the reviewing court, we review the imposition of probation conditions that do not infringe upon a constitutional right for an abuse of discretion. (People v. Brandão (2012) 210 Cal.App.4th 568, 573 (Brandão).)
In so doing, we acknowledge a juvenile court is afforded greater leeway in imposing probation conditions on minors than on adults. (In re Todd L. (1980) 113 Cal.App.3d 14, 19 (Todd L.) ["special purposes of the Juvenile Court Law" can render a probation condition that would be impermissible for an adult to be reasonable for a juvenile].) "The juvenile court's broad discretion to fashion appropriate conditions of probation is distinguishable from that exercised by an adult court when sentencing an adult offender to probation. Although the goal of both types of probation is the rehabilitation of the offender, '[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.' [Citation] . . . [¶] In light of this difference, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) Thus, "in planning the conditions of [a minor's] supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history." (Todd L., supra, at p. 20.)
Here, the first two elements set forth in Lent are readily met. The no-gang-contact probation condition has no relationship to minor's offense. Additionally, associating with known gang members is not by itself a criminal act. Thus, the issue is whether the condition requires or forbids conduct that is reasonably related to minor's future criminality.
In Brandão, this court considered whether a no-gang-contact probation condition was erroneously imposed when the defendant had never been involved in criminal street gangs and did not have family members or ties with those associated with such groups. (Brandão, supra, 210 Cal.App.4th at pp. 570-571.) We acknowledged the trial court felt that imposing the gang condition would forestall the risk of future criminal behavior. (Id. at p. 574.) Nonetheless, we concluded that "[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable." (Ibid.) Thus, the no-gang-contact probation condition could not be imposed on the defendant, because he had no ties with a criminal street gang, he had no family members with ties to a criminal street gang, and his criminal history did not show or strongly suggest a gang tie. (Id. at p. 576.)
Brandão, however, is distinguishable. There, we were concerned with a condition of an adult offender's probation. Here, we are faced with a condition of juvenile probation, and a juvenile court has broader powers to fashion probation conditions in the best interests of minors that are adjudicated wards of the court.
We find, however, that despite the juvenile court's broad discretion to fashion probation conditions, imposition of the probation condition on this record was an abuse of discretion. The record here is devoid of any showing that minor had a connection to gangs. Although the People suggest the condition is reasonably related to minor's rehabilitation because she committed her offense with others, there is nothing to suggest the other perpetrators were somehow affiliated or involved with gangs. Additionally, the record suggests the court did not consider minor's predilection to committing crimes with others to be the basis for the probation condition. During the dispositional hearing, the juvenile court equated the no-gang-contact probation condition with a condition prohibiting contact with probationers or parolees and noted it generally believed that "as a general proposition, as a gate—as a condition—as an order of the Court to enhance rehabilitation, it's—it makes sense to have minors not associate with those kind of people if they know they're involved—they are a gang person or a parolee or a probationer." Thus, the juvenile court expressed a belief that the gang probation condition was related to minor's rehabilitation regardless of the underlying facts of the minor's offense or her background.
We acknowledge that in certain cases, courts have upheld no-gang-contact probation conditions for minors who have no known gang affiliation. For example, in In re Laylah K. (1991) 229 Cal.App.3d 1496 (Laylah K.), disapproved of on another point in In re Sade C. (1996) 13 Cal.4th 952, 962, the appellate court upheld gang-related probation conditions when the record showed the minors had a "history reflect[ing] increasingly undirected behavior" and they "were clearly in danger of succumbing to gang pressures." (Laylah K., supra, at p. 1501.) In addition, the minors admitted they had friends who were gang members, and one of the girls who accompanied the minors during the offense was a gang member. (Id. at pp. 1500-1501.) Thus, the court concluded, "[e]vidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path." (Id. at p. 1502.)
This case is distinguishable from Laylah K. Unlike in Laylah K., there is no evidence or information that would imply that minor was in danger of succumbing to gang pressures. An argument that minor may start associating with gangs is purely speculative. Nothing in the record indicates minor had friends who were gang members, or that the other individuals she committed the crime with were members of a gang. Therefore, we cannot conclude the probation condition was reasonably related to her future criminality. Accordingly, we strike the probation condition prohibiting her from associating with gang members.
DISPOSITION
In case No. H042832, the dispositional order is modified by striking the probation condition prohibiting defendant from associating with known gang members. In all other respects the orders appealed from are affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.