Filed 6/13/13 In re Andrew W. 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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



In re ANDREW W., a Person Coming Under
the Juvenile Court Law.                                                                 C071711

THE PEOPLE,                                                                   (Super. Ct. No. 69202)

                   Plaintiff and Respondent,

         v.

ANDREW W.,

                   Defendant and Appellant.




         Following a contested jurisdictional hearing, the juvenile court sustained a
delinquency petition alleging the minor Andrew W. had committed first degree burglary
(Pen. Code, § 459). The juvenile court declared the minor a ward of the court and placed
him on probation.




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       On appeal, the minor contends there is insufficient evidence to support the
jurisdictional finding, and trial counsel was ineffective for failing to object to the pretrial
identification procedure. We shall affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On the afternoon of April 24, 2011, Veronica Lara, her brother, her three children,
and her husband, Henry Barajas, left their apartment to attend Easter dinner. The door
was locked when they left, but the apartment had a broken window.

       Lara and her family left to return home at around 9:30 p.m. that night. As the car
approached the apartment building’s gate, Lara, the driver, observed three males walking
out of the apartment. Barajas, seated in the passenger seat, testified that the males were
about 10 feet away from him. The three males were carrying belongings from the
apartment underneath their clothes. Lara recognized one of the three males as her
brother’s friend George, who had visited her apartment that week. She did not know his
last name. George was carrying an Xbox, which was sticking out under his jacket, as he
walked out the apartment’s front door. The minor was carrying Lara’s tattoo gun and
another minor, Antonio J., was carrying a laptop. All three headed to the apartments
across the street. Lara later determined that Xbox controllers, a camera, a camera
recorder, an iPod, and phones were also taken from the apartment.

       Lara and Barajas only recognized George at the scene of the burglary. After the
burglary, Lara learned that George had a brother, whom she later identified as Antonio J.
She also saw Antonio J.’s photograph on Facebook. Lara identified the minor and
Antonio J. as the other two burglars at a field lineup and at trial. At trial, Barajas also
identified the minor and Antonio J. as the other two burglars.

       Two days after the burglary, Lara and Barajas saw Antonio walking in their
neighborhood. Barajas asked Antonio, “Where’s my stuff?” Antonio admitted



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participating in the burglary, saying no one could do anything to him. Lara and Barajas
learned where Antonio lived and called the police.

       An officer went to Antonio J.’s residence with Lara, where she pointed out
Antonio as he was walking on the sidewalk. The officer contacted Antonio at his
residence; the minor was also in the residence, as were his two brothers. The officer then
conducted an in-field lineup with Antonio, the minor and his brothers, and Lara identified
the minor and Antonio as participants in the burglary.

       Testifying for the defense, the minor’s mother asserted that she, the minor, and her
25-year-old daughter Nicole attended Easter dinner at her other daughter’s house from
3:30 p.m. to 10:30 or 11:00 p.m. Nicole testified and confirmed mother’s account.

       In sustaining the petition, the juvenile court found Lara and Barajas were credible
while the minor’s mother and sister were not.

                                      DISCUSSION

                              I. Sufficiency of the Evidence

       The minor contends there is insufficient evidence to support the juvenile court’s
finding that he committed burglary. We disagree.

       Criminal allegations in a delinquency hearing are subject to the same proof beyond
a reasonable doubt standard as applied to criminal court. (In re Winship (1970) 397 U.S.
358, 368 [25 L.Ed.2d 368, 377-378].) “When the sufficiency of the evidence is
challenged on appeal, we apply the familiar substantial evidence rule. We review the
whole record in a light most favorable to the judgment to determine whether it contains
substantial evidence, i.e., evidence that is credible and of solid value, from which a
rational trier of fact could find beyond a reasonable doubt that the accused committed the
offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) “We must consider all of
the evidence in the light most favorable to the prevailing party, giving that party the


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benefit of every reasonable inference from the evidence tending to establish the
correctness of the trial court’s decision, and resolving conflicts in support of the trial
court’s decision.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.) “[I]n juvenile
cases, as in other areas of the law, the power of an appellate court asked to assess the
sufficiency of the evidence begins and ends with a determination of whether, on the
entire record, there is any substantial evidence, contradicted or uncontradicted, which will
support the decision of the trier of fact.” (Ibid.)

       The minor attacks the eyewitnesses’ identification of him as one of the burglars.
He cites cases, which note that studies have questioned the reliability of eyewitness
testimony, and points out that an unduly suggestive procedure can taint subsequent
eyewitness identification. The minor also notes that neither Barajas nor Lara ever saw
the minor before the burglary, and they did not give a detailed description of the minor to
the police.

       The minor also asserts other alleged problems with the identification evidence. He
claims Lara and Barajas gave inconsistent descriptions of the minor to the police. The
minor additionally notes that he was found after Lara saw Antonio go into a
neighborhood home, where police found the minor.

       Finally, the minor attacks the field identification procedure. Lara and Barajas told
police that the burglars were all young Hispanic males between the ages of 15 and 20.
However, of the four participants in the field identification, two were Hispanic,
Antonio J. and the minor, while the other two were Black. From this, the minor asserts
that Lara’s “in-court identification was not surprising given the prior unduly suggestive
lineup,” and “Barajas’s in-court identification also is not surprising as he knew of
Antonio J. and presumably [the minor] was the only other Hispanic male in the
courtroom.”



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       The testimony of a single witness is sufficient to support a judgment or finding
unless the testimony is physically impossible or its falsity is apparent without resorting to
inferences or deductions. (People v. Cudjo (1993) 6 Cal.4th 585, 608-609; see also Evid.
Code, § 411 [“Except where additional evidence is required by statute, the direct
evidence of one witness who is entitled to full credit is sufficient for proof of any fact.”].)
“Identity is a question of fact for the trial court [citations] and any claimed weakness in
the identification testimony is a matter of argument to the court below and cannot be
effectively urged on appeal.” (People v. Hinson (1969) 269 Cal.App.2d 573, 578.)

       With the exception of the attack on the field identification procedure, the minor
contests the eyewitnesses’ credibility. The juvenile court found Lara and Barajas
credible, and we shall not overturn that finding on appeal. While an unduly suggestive
pretrial identification procedure violates a defendant’s due process rights, the minor
forfeited this claim by failing to object to it at the jurisdictional hearing. (Evid. Code,
§ 353.)

       The cases cited by the minor do not change our analysis. People v. McDonald
(1984) 37 Cal.3d 351, overruled on other grounds in People v. Mendoza (2000)
23 Cal.4th 896, 914, addressed whether it was an abuse of discretion to exclude expert
testimony on the reliability of eyewitness identification. (McDonald, at p. 355.) In Perry
v. New Hampshire (2012) 565 U.S. __ [181 L.Ed.2d 694] the Supreme Court declined to
extend pretrial screening of an eyewitness’ credibility to those “cases in which the
suggestive circumstances were not arranged by law enforcement officers.” (Id. at p. __
[181 L.Ed.2d at p. 703]). State v. Lawson (2012) 352 Ore. 724 [291 P.3d 673], a case not
binding on us, addressed Oregon’s procedures for the admissibility of eyewitness
identification evidence. (Id. at p. 727 [291 P.3d at p. 678].)




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         Two eyewitnesses testifying at the jurisdictional hearing identified the minor as
one of the burglars. Their testimony was neither physically impossible nor false on its
face. Substantial evidence supports the trial court’s finding.

                                  II. Counsel’s Competence

         The minor contends trial counsel was ineffective for failing to object to the field
identification procedure.

         A minor in a delinquency proceeding has the right to effective assistance of
counsel. (In re Edward S. (2009) 173 Cal.App.4th 387, 392, 406, 419.) “To establish
ineffective assistance of counsel, a defendant must show that (1) counsel’s representation
fell below an objective standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” (People v. Scott (1997) 15 Cal.4th 1188, 1211-
1212.)

         The minor claims the field identification—which consisted of two Hispanics, the
minor and Antonio J., along with the two Black males found at Antonio J.’s residence—
was unduly suggestive because Lara and Barajas told police the burglars were young
Hispanic males. He claims competent trial counsel would have challenged the
identification procedure, and counsel’s failure to do so was prejudicial because it
undercut the only evidence of his guilt and his witnesses established an alibi.

         “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. [Citation.] The defendant bears the burden of proving that the
procedure resulted in such unfairness that it infringed the right to due process. [Citation.]



                                                6
On appeal, we review the totality of the circumstances in determining whether an
identification procedure was unconstitutionally suggestive.” (People v. Wimberly (1992)
5 Cal.App.4th 773, 788.) “Appellant must show unfairness as a demonstrable reality, not
just speculation.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.)

       The test for determining whether a procedure is unnecessarily suggestive is
“whether anything caused defendant to ‘stand out’ from the others in a way that would
suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312,
367.) While two of the four young men at the identification were of a different race than
the minor, they were placed in the lineup for a reason—they, like the minor, were found
in the home of the initial suspect, Antonio J. Also, “there is no requirement that a
defendant in a lineup, either in person or by photo, be surrounded by others nearly
identical in appearance.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052, citing
People v. Wimberly, supra, 5 Cal.App.4th at p. 790.) The courts have upheld the validity
of lineup identifications despite disparities among the participants. (See People v.
Guillebeau (1980) 107 Cal.App.3d 531, 556-557 [the defendant had the darkest skin
color]; People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218 [the defendant was the only
person in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [the defendant
was the only man in a red shirt].)

       The fact that Antonio J., the other Hispanic in the identification lineup with the
minor, was identified by Lara before the lineup, does not render the procedure unduly
suggestive. Before she made the field identification, Lara was given a standard
advisement for witnesses at such identification procedures, which included telling her
that the subjects were all suspects and that it was “just as important to free the innocent as
to prosecute the guilty.” There is no evidence that the officer conducting the field
identification suggested that Lara should identify the minor or any other suspect.




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Furthermore, Lara’s identification of the minor was corroborated at the jurisdictional
hearing by Barajas, who did not attend the field identification.

       An objection to the pretrial identification would have been unsuccessful.
Declining to raise a futile objection is not ineffective assistance of counsel. (See People
v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile
objections.”].) Even if the objection had been successful, the minor cannot establish
prejudice in light of Barajas’s testimony identifying the minor. Accordingly, the minor’s
contention fails.

                                      DISPOSITION

       The judgment is affirmed.




                                                              BUTZ                   , J.



We concur:



             BLEASE                , Acting P. J.



             MAURO                 , J.




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