Filed 3/17/15 In re R.C. CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


In re R.C., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
         Plaintiff and Respondent,                                   A141492
v.
                                                                     (Alameda County
R.C.,                                                                Super. Ct. No. SJ13020531)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         On February 3, 2014, a petition was filed under Welfare and Institutions Code
section 602 in the Alameda County Superior Court alleging that 15-year-old minor R.C.
(appellant) had robbed another juvenile of personal property, an iPhone 5. (Pen. Code,
§ 211.) Following a contested hearing, the court sustained the petition. At the
disposition hearing on March 25, 2014, the court continued appellant’s wardship, and
released him to his father’s custody on GPS monitoring.
         Appellant contends the trial court erred by denying his motion to suppress
evidence of the victim’s out-of-court photo identification which he claims was unduly
suggestive. Appellant also claims prosecutorial misconduct due to improperly coaching
the victim prior to his rebuttal testimony. Lastly, he argues the evidence was insufficient




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to prove he was the person who committed the robbery. We disagree with these
arguments and affirm the juvenile court’s orders.
                                              II.
                        FACTS AND PROCEDURAL HISTORY
       The prosecution’s chief witness was the robbery victim, who was a high school
freshman at the time of the crime. When the victim got out of school on January 30,
2014, he went to a nearby gas station with his friends. After they made their purchases,
appellant and another juvenile, who was later identified as J.G., were walking in front of
the victim and his friends and kept turning around and looking at them.
       J.G. eventually asked the victim if he had a phone, and he said no. Then J.G.
came around, put him in a “headlock” and said: “Rob, his phone.” The victim had his
hands over his pockets to prevent them from taking his phone, but “[J.G.] said he was
going to shoot me if I didn’t let him take my phone, so I moved my hands and let
[appellant] take it.” Appellant pulled the victim’s iPhone out of his pocket. J.G. told the
victim that if he and his friends called the police, they would shoot them. The threat
scared the victim because he did not want to get shot over a phone. He said the whole
incident happened quickly, within a few seconds.
       The victim recognized appellant as the person J.G. called “Rob” because they both
previously attended the same middle school and they both currently were enrolled in the
10th grade at the same high school. The victim testified he had never actually spoken
with appellant, but the victim recognized him from attending school together and “[m]y
friends were friends with him . . . .” Furthermore, the victim repeatedly testified he had
one class with appellant, a sixth period physical education (P.E.) class, so he saw




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appellant on a daily basis.1 The victim did not know J.G., the other assailant, and had
never seen him before this incident.
       After the encounter, the victim walked up to his former middle school and called
the police on his friend’s phone. Hayward Police Officer Wilson testified he interviewed
the victim immediately after the incident. the victim identified one of the robbers by
name, as a fellow student named “Rob or Robert” and gave the officer a physical
description of both assailants. Officer Wilson called Officer Najera, a six-year veteran of
the Hayward Police Department who was assigned to the high school as a school resource
officer, and conveyed the information the victim had given him. Officer Wilson then
received a text message on his cell phone that contained a photo of appellant, which he
showed to the victim. The photo had appellant’s name on it. The victim testified the
officer said something like it might be the guy, it might not be the guy. The victim
identified appellant as one of the persons who robbed him. The officer only showed the
victim one picture. Officer Wilson then sent Officer Najera a text or called him saying
“that’s the guy.”
       The victim came to assistant principal Dave Seymour’s office the day after the
incident and said the person who robbed him was on campus that day. Based on what
Officer Najera told him the day before, Mr. Seymour pulled up appellant’s photograph
and asked the victim if that was the person the victim was talking about, and the victim
said yes. He pulled up a photograph of J.G., a student who was frequently seen with
appellant. The victim was “about like 90” percent certain the person depicted in the
photograph was the other robber.
       At some point, the victim’s friend K., who was an eyewitness to the robbery, was
also brought into Mr. Seymour’s office. K. was only shown two photographs, which K.

       1
          As will be explained in great detail in conjunction with the issue on appeal
alleging prosecutorial misconduct, the victim’s testimony that appellant was in his sixth
grade P.E. class was contradicted by school records. When the victim testified on
rebuttal, he explained he frequently saw appellant in the area where his P.E. class was
being held and mistakenly assumed he was in the class––an explanation that was found
credible by the court.


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identified as the persons who had taken the victim’s iPhone. Based on their in-court
observations, the victim and K. were 100 percent certain the two people who robbed him
were appellant and J.G..
       Appellant did not testify at the hearing. He presented evidence from L.V., an alibi
witness who described herself as appellant’s close personal friend. L.V. testified she was
with appellant during the time of the robbery. They were picking up L.V.’s brother at the
Eden Youth and Family Center. Additionally, appellant’s father testified appellant did
not own shoes that matched the description of the shoes described by the victim.
       The trial court found the robbery charge true beyond a reasonable doubt. At the
time of this offense, appellant had previously been adjudged a ward of the court and was
on probation. The court set appellant’s maximum custody time at five years four months.
At the March 25, 2014 dispositional hearing, the court ordered appellant be placed with
his father and be monitored by the “Family Preservation Unit.” Appellant was released
on GPS (global positioning system) monitoring and ordered to stay away from the victim
and witnesses. This appeal followed.
                                            III.
                                      DISCUSSION
       A. Motion to Suppress Victim’s Out-of-Court Photo Identification
       During the contested hearing, appellant filed a written motion to suppress the
evidence of his identification as one of the robbers. He argued that the identifications
made by the victim (and to a lesser extent K.), from a single photograph was unduly
suggestive and violated his due process rights. Appellant claims the trial court erred in
denying the motion. Since the victim identifications were the sole evidence connecting
appellant to the robbery, appellant claims his conviction should be reversed.
       Due process requires the exclusion of identification testimony “if the identification
procedures used were unnecessarily suggestive” and “the resulting identification was also
unreliable. [Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) The threshold
issue is whether the identification procedure was unduly suggestive and unnecessary.
(See People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If that initial question is answered


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in the affirmative, the court must then determine whether the identification itself was
nevertheless reliable under the totality of the circumstances, taking into account such
factors as the witness’s opportunity to view the offender at the time of the crime, the
witness’s attentiveness, the accuracy of the witness’s prior description, the level of
certainty displayed at the identification and the time elapsed between the crime and the
identification. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa); People v.
Cunningham (2001) 25 Cal.4th 926, 989; People v. Thomas (2012) 54 Cal.4th 908, 930
(Thomas).)
       Appellate courts give deferential review to the trial court’s factual findings,
especially those that turn on credibility determinations. However, we independently
review the trial court’s ruling regarding whether, under those facts, a pretrial
identification procedure was unduly suggestive. (Thomas, supra, 54 Cal.4th at p. 930.)
Only if the challenged identification procedure is unnecessarily suggestive is it necessary
to determine the reliability of the resulting identification. (Id. at pp. 930-931; People v.
Alexander (2010) 49 Cal.4th 846, 902; Simmons v. United States (1968) 390 U.S. 377,
384 [even if a witness has been subjected to a suggestive pretrial identification procedure,
“eyewitness identification at trial . . . will be set aside on that ground only if the [pretrial]
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification”].)
       Appellant argues the court should have suppressed the identification evidence
because “the identification procedure . . . was so impermissibly suggestive that it gave
rise to a very substantial likelihood of irreparable misidentification.” There is no
indication the victim’s identification of appellant shortly after the robbery was based on
unduly suggestive procedures. A single-person photographic show-up is not inherently
unfair or impermissibly suggestive. (Ochoa, supra, 19 Cal.4th at pp. 413, 425–426;
People v. Contreras (1993) 17 Cal.App.4th 813, 820-821 (Contreras) [“[N]umerous
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 show-up.
[Citations.]”].) “Showing the witnesses a single photo of the defendant is no more


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impermissibly suggestive than an in-court identification with the defendant personally
sitting at the defense counsel table in the courtroom. [Citations.]” (People v. Yonko
(1987) 196 Cal.App.3d 1005, 1008–1009, original italics.) ].) In fact, “single-person
show-ups for purposes of in-field identifications are encouraged, because the element of
suggestiveness inherent in the procedure is offset by the reliability of an identification
made while the events are fresh in the witness’s mind, and because the interests of both
the accused and law enforcement are best served by an immediate determination as to
whether the correct person has been apprehended. [Citation.]” (In re Carlos M. (1990)
220 Cal.App.3d 372, 387, original italics.)
       Here, the exigency of the circumstances certainly warranted the prompt single-
photo show-up shortly after the robbery. During the robbery, the victim recognized
appellant as being a fellow student at Hayward High School. He had provided Officer
Wilson the first name, “Rob” or “Robert” along with a physical description. Based on
this information, a school photograph was quickly retrieved and shown to the victim.
Officer Wilson made no suggestive comments; instead, he admonished the victim that the
person depicted in the photograph might not be the perpetrator. The victim
unequivocally identified appellant as one of the persons who took his iPhone. With the
crime fresh, and without any misconduct by the police or impermissible suggestions, we
agree with the trial court that the circumstances warranted the police officer’s quick
retrieval of the single photograph. Showing it to the victim was not so impermissibly
suggestive as to give rise to a substantial likelihood of misidentification. (See, e.g.,
People v. Pervoe (1984) 161 Cal.App.3d 342, 359.)
       Assuming, arguendo, that the single-photo identification procedure was unduly
suggestive, appellant still must show the in-court identification was unreliable based on
the totality of the circumstances. (Stovall v. Denno (1967) 388 U.S. 293, 301–302,
overruled on other grounds in Griffith v. Kentucky (1987) 479 U.S. 314, 321-322; Ochoa,
supra, 19 Cal.4th at p. 412.) Appellant “bears the burden of proving unfairness as a
‘demonstrable reality,’ not just speculation. [Citations.]” (Contreras, supra, 17
Cal.App.4th at p. 819.) Based on our review of the totality of the circumstances, we


                                              6
conclude that the victim’s identification of appellant as the person who took the iPhone
out of his pocket was reliable. When appellant robbed him, the victim immediately
recognized him from multiple prior encounters during their years together attending the
same schools. By the time he was shown the single photograph, the victim had already
identified appellant by his first name (Rob or Robert), and had given the officer a
complete physical description which accurately described appellant.2
       Therefore, the victim’s positive identification of appellant as one of the persons
who robbed him after viewing the single photograph was not the result of any misconduct
by law enforcement. Instead, he had a strong independent foundation on which to
identify appellant based on multiple prior opportunities to observe appellant’s
appearance. Under the totality of the circumstances, we conclude the victim’s
identification of appellant as one of the persons who robbed him was reliable. Therefore,
the admission of evidence of the victim’s identification did not violate appellant’s
constitutional due process rights.
       B. Prosecutorial Misconduct
       Appellant next claims that outside the courtroom, in preparation for recalling the
victim as a witness after he had already testified, the prosecutor improperly coached the
victim and caused him to change his testimony.
       The victim testified on direct examination that he had seen appellant almost every
day in his sixth period P.E. class. In support of his claim of prosecutorial misconduct,
appellant cites the victim’s subsequent testimony that when the prosecutor came to serve
the victim’s subpoena to secure his testimony for rebuttal, the subject of who was in the
victim’s P.E. class was discussed. The prosecutor asked the victim whether he was sure
appellant was in his P.E. class. The prosecutor told the victim that school records
revealed appellant was not enrolled in the victim’s P.E. class.

       2
        The victim reported to police that one of the robbers was “some guy named
Rob,” an Hispanic male, five feet nine inches in height and weighing approximately 150
pounds. The parties stipulated that appellant was five feet eight inches in height and
weighed 150 pounds.


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       The victim testified he just “put [it] together on [his] own” that appellant was not
actually in his P.E. class, but instead was near the class on many occasions. The victim
stated, “Well, I know he was in my P.E. period. I don’t know if I said my specific class.”
The victim indicated he “would see [appellant] there every day.” What the victim really
meant now was that appellant was frequently standing near the victim’s P.E. class during
sixth period.
       After the victim gave the foregoing testimony, appellant moved for a mistrial on
the ground of prosecutorial misconduct. The court denied the motion without comment.
Appellant claims this ruling was in error because “the prosecutor committed misconduct
by personally informing the victim on March 7, 2014––before the victim’s intended
rebuttal testimony––that appellant was not in the victim’s sixth period P.E. class.”
(Italics added.) He claims the evidence “clearly establishes that the prosecutor’s
coaching of this witness amounted to reversible misconduct.”
       Based on our review of the record, we conclude that there is insufficient evidence
the prosecutor’s preparation of the victim for rebuttal testimony amounted to
impermissible coaching or an attempt to fabricate false testimony. According to federal
and state standards regarding prosecutorial misconduct, “ ‘ “[a] prosecutor’s . . .
intemperate behavior violates the federal Constitution when it comprises a pattern of
conduct ‘so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does
not render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” ’ [Citation.]” (People v. Samayoa (1997) 15
Cal.4th 795, 841 (Samayoa).) “A defendant’s conviction will not be reversed for
prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable
to the defendant would have been reached without the misconduct. [Citation.]” (People
v. Crew (2003) 31 Cal.4th 822, 839.)
       The record before us fails to show a pattern of conduct by the prosecutor so
egregious, deceptive, or reprehensible with respect to the preparation and questioning of


                                              8
the victim as to render the trial fundamentally unfair, thereby denying appellant due
process. (See Ochoa, supra, 19 Cal.4th at p. 427; People v. Hill (1998) 17 Cal.4th 800,
819.) First of all, appellant fails to establish that any prejudicial prosecutorial misconduct
occurred. It is well settled that “ ‘the prosecution cannot present evidence it knows is
false and must correct any falsity of which it is aware in the evidence it presents, even if
the false evidence was not intentionally submitted.’ [Citation.]” (People v. Morrison
(2004) 34 Cal.4th 698, 716.) “Put another way, the prosecution has the duty to correct
the testimony of its own witnesses that it knows, or should know, is false or misleading.
[Citation.] This obligation applies to testimony whose false or misleading character
would be evident in light of information known to the police involved in the criminal
prosecution . . . .)” (Id. at pp. 716-717.) Thus, in preparing the victim for his rebuttal
testimony, it was not prosecutorial misconduct for the prosecutor to apprise the victim
that the school’s records did not support his recollection that appellant was in his P.E.
class.
         Perhaps most critically for our analysis of this issue, there is no evidence here that
the prosecutor told the victim to lie, encouraged him to do so, or attempted to alter his
recollection of the facts. Therefore, there is no evidence that the prosecutor coached the
witness. To the contrary, the victim testified that he figured out on his own that appellant
was frequently in the vicinity of his P.E. class but not actually in the class itself.
         Moreover, defense counsel conducted cross-examination of the victim regarding
the extent and degree of his pre-testimony contact with the prosecutor, the content of
their discussions, the degree to which the prosecutor prepared his testimony, and
appellant’s actual recollection of the events at issue. The judge, who was the trier of fact,
was given the opportunity to evaluate the victim’s credibility and to assess his ability to
recall events independently.
         In short, on the record presented here, we cannot say that the prosecutor used
deceptive or reprehensible methods to persuade the court appellant participated in the
robbery. (Samayoa, supra, 15 Cal.4th at p. 841.) This incident did not involve
prejudicial prosecutorial misconduct.


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       C. Substantial Evidence Supports The Trial Court’s Findings
       Appellant next contends that in the absence of corroborating evidence, the
evidence was insufficient to support a finding that he was one of the persons who
committed the robbery. We disagree.
       In considering a sufficiency of the evidence claim in juvenile proceedings, this
court applies the same standard of review that is applicable in criminal cases. (In re
Roderick P. (1972) 7 Cal.3d 801, 808–809.) Thus, this “court must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from that
evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
       As appellant acknowledges, an out-of-court identification does not require any
special corroboration to support a criminal conviction (or juvenile adjudication). (People
v. Cuevas (1995) 12 Cal.4th 252, 257; People v. Allen (1985) 165 Cal.App.3d 616, 623
[“[A]bsent physical impossibility or inherent improbability, the testimony of a single
eyewitness is sufficient to support a criminal conviction. [Citation.]”.) Nevertheless, in a
repeat of appellant’s first argument on appeal, he argues the circumstances surrounding
his identification as one of the robbers were unduly suggestive, and the identification was
unreliable. He also sets out inconsistencies in the victim’s testimony, principally the
victim’s confusion over whether or not appellant was in his P.E. class, that he claims
demonstrates the victim’s lack of credibility. Furthermore, he points out various
inconsequential details in the trial court’s oral findings which he claims are not supported
by the evidence adduced at the contested hearing. He also asserts L.V., his alibi witness,
“was a credible witness” whose testimony should have been acknowledged by the court
in making its findings. None of these assertions compel us to overturn the juvenile
court’s findings.



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       As our Supreme Court has explained, “[t]o warrant the rejection of the statements
given by a witness who has been believed by [the fact finder], there must exist either a
physical impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.]” (People
v. Huston (1943) 21 Cal.2d 690, 693, disapproved on another ground in People v. Burton
(1961) 55 Cal.2d 328, 352.)
       Here, the arguments made by appellant do not meet the demanding standards for
rejecting a witness’s testimony. The juvenile court, as the trier of fact, heard extensive
evidence about the circumstances surrounding the victim and K.’s identifications of
appellant as one of the robbers. Defense counsel cross-examined the witnesses closely
about their ability to identify the suspects. During closing argument, defense counsel
pointed out circumstances suggesting the eyewitness identifications were unreliable. The
juvenile court made credibility determinations and drew rational inferences from the
evidence that amply support its finding that appellant was one of the persons who robbed
the victim of his iPhone. We are not authorized to substitute our judgment for that of the
juvenile court. “[W]hen the circumstances surrounding the identification and its weight
are explored at length at trial, where eyewitness identification is believed by the trier of
fact, that determination is binding on the reviewing court. [Citation.]” (In re Gustavo M.
(1989) 214 Cal.App.3d 1485, 1497.) In sum, there was sufficient evidence to support the
juvenile court’s determinations.
                                              IV.
                                       DISPOSITION
       The orders of the juvenile court are affirmed.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
STREETER, J.




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