Filed 3/24/14 In re S.C. CA5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

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


THE PEOPLE,                                                                            F066909

         Plaintiff and Respondent,                                     (Super. Ct. No. 11CEJ600096-3)

                   v.
                                                                                     OPINION
S.C.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Ralph L.
Putnam, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia
A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Gomes, J., and Franson, J.
                                    INTRODUCTION
       On February 1, 2013, a petition was filed, pursuant to Welfare and Institutions
Code section 602, alleging that appellant, S.C., committed second degree robbery of
Maria S. on January 25, 2012.
       On February 26, 2013, a second amended petition was filed, pursuant to Welfare
and Institutions Code section 602, alleging that on January 1, 2013, appellant committed
grand theft from a person, Yolanda S. (Pen. Code, § 487, subd. (c), count 1), and second
degree robbery of Yolanda S. (Pen. Code, § 211, count 2). Both offenses were alleged to
be felonies. After a contested jurisdiction hearing on February 26, 2013, the juvenile
court found the allegations to be true.
       At the disposition hearing on March 12, 2013, the juvenile court found appellant
to be a ward of the court, and placed her on probation upon various terms and conditions,
including that she be detained at the juvenile justice campus for 180 days. The court
found that appellant’s total aggregate, maximum term of confinement, including potential
confinement from a prior petition, was eight years, with custody credits of 185 days for
time already served in confinement. The court stayed appellant’s sentence on count 1.
       On appeal, appellant argues that a field show-up violated her due process rights.
Appellant also contends the juvenile court abused its discretion in permitting the victim
of a different offense to enter the courtroom during the hearing.
                                          FACTS
January 25, 2012 Robbery
       On the morning of January 25, 2012, Maria S., who was then 14 years old, was
waiting with a friend at a bus stop to go to school. Maria saw appellant and another girl
at the bus stop. Maria had never seen the girls before. Both girls standing at the bus stop
were pretending to be waiting for the bus. One girl was wearing black pajama bottoms
with orange basketballs on them. Maria identified appellant as the girl wearing pajamas.



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Appellant yanked Maria’s gold necklace off her neck. Maria got a good look at
appellant, whose hair looked as though she had just gotten out of bed.
       After taking Maria’s necklace, appellant and her friend ran away. Maria had a red
mark on the back of her neck. Maria borrowed a cell phone, called her mother, and told
her what happened. Maria’s mother reported the incident to the police. Maria also told
her father about the incident and gave him appellant’s description. Maria’s father saw
appellant walking with a friend. Maria’s parents called the police. Maria’s mother
picked Maria up from school a few hours after the robbery, right after lunch.
       Later that day, an officer drove Maria, with her father, in a patrol car to a house
and asked Maria if the girls outside were the girls from the bus stop. The girls were not
handcuffed. Although appellant was not wearing the same clothes as she was earlier,
Maria recognized her as the person who took her necklace. The other girl with appellant
was the same girl who was with appellant at the bus stop.
       Maria recognized appellant by her height, her hair, and her face. Although Maria
told an investigating officer that appellant had scars on her face, appellant did not have
scars on her face at the hearing. At the hearing, Maria explained that appellant had
scratches on her cheek the day she stole the necklace. Maria was not close enough to see
the scratches on appellant’s face when Maria made the identification from the police car.
       When asked on cross-examination whether her father identified the two young
women who had been at the bus stop, Maria replied affirmatively. When asked if her
father told her to identify those individuals, Maria replied, “[y]es.” When asked on
redirect the clarifying question concerning whether she told the officers who the girls
were because her “dad wanted [her] to,” Maria replied, “[n]o.” Maria further elaborated
that the identification of appellant had nothing to do with anything her father said to her.
Maria’s father did not describe appellant to Maria prior to her seeing appellant.
       Fresno Police Officer Brian Chadwick contacted appellant at her house.
Chadwick searched appellant’s bedroom. Although he did not find the stolen necklace,

                                              3
Chadwick found maroon or burgundy pajama bottoms with orange basketballs on them
and boots. Chadwick did not search the entire house. During the in-field identification,
Chadwick stood with appellant and her friend. Appellant had a scar on her forehead and
scratches on her left check.
       Appellant testified that she did not steal anything from Maria. Appellant stated
she was at home when the incident occurred. Appellant denied owning pajama bottoms
with a basketball design but believed that the pajama bottoms found by Chadwick could
belong to her brother.
January 1, 2013 Robbery
       At about 2:00 p.m., on January 1, 2013, Yolanda S. was across the street from her
home with a group of kids. As appellant walked past Yolanda, appellant grabbed a gold
necklace Yolanda was wearing and yanked it off her neck. Appellant ran away. Yolanda
saw appellant go down the alley on “C” Street. Yolanda and her brother briefly chased
appellant but lost sight of her. Yolanda then got into a car with her brother to catch up
with appellant. When they reached appellant, appellant ran inside a residence.
       Yolanda called the police and waited outside the residence she had seen appellant
enter. When the police exited the residence with appellant, Yolanda identified her as the
person who had stolen her necklace. The necklace was not recovered by the police. At
the hearing, Yolanda said that she recognized appellant’s face.
       Appellant’s mother testified that appellant was at home with her between 2:35 to
2:45 p.m., before appellant left to go to her friend’s home. Appellant’s friend testified
that appellant arrived at her home, but she could not recall her time of arrival. Appellant
told her friend someone was chasing her. The friend never saw appellant with a
necklace.




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                                IN-FIELD IDENTIFICATION
       Appellant challenges her in-field identification after the January 2012 robbery
because she believes it was overly suggestive, violated her due process rights, and
prejudicially affected the outcome of her case. We disagree.
       We find merit to respondent’s initial contention that appellant has raised this issue
for the first time on appeal and the matter is, therefore, subject to forfeiture and waiver.
In People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham), the Supreme Court
found waiver applicable where the defendant waited until after the prosecution had
presented its entire case before objecting to the reliability of the identification procedures
employed by investigators. Here, as in the Cunningham case, defense counsel waited
until his closing argument to argue that the in-field identification was unduly suggestive.
Even so, defense counsel did not bring a motion challenging the in-field identification.
This issue is forfeited.
       Even if there had been a timely objection to the juvenile court, we fail to find any
serious infirmity with the procedure adopted by the investigators here. The question of
constitutional reliability depends on whether the identification was unduly suggestive
and, if so, whether the identification itself was nevertheless reliable under the totality of
the circumstances. In determining the totality of the circumstances, courts take into
account the opportunity of the witness to view the perpetrator at the time of the crime, the
accuracy of the victim’s prior description of the perpetrator, the level of certainty
demonstrated during the identification, and the time between the crime and the
identification. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 114; Cunningham,
supra, 25 Cal.4th at p. 989.)
       The defendant bears the burden of demonstrating that the identification procedure
was unreliable. (Cunningham, supra, 25 Cal.4th at pp. 989-990; People v. Ochoa (1998)
19 Cal.4th 353, 412 (Ochoa).) Although a one person show-up may pose a danger of
suggestiveness, it is not necessarily inherently unfair. All of the circumstances must be

                                               5
considered. (Ochoa, supra, 19 Cal.4th at p. 413; People v. Medina (1995) 11 Cal.4th
694, 753.)
       Single person show-ups for the purpose of in-field identification are encouraged
because the element of suggestiveness inherent in the procedure is offset by the reliability
of an identification while the events are still fresh in the witness’s mind. Single person
show-ups may be used so long as the procedures used are not so suggestive as to give rise
to a substantial likelihood of misidentification. (In re Carlos M. (1990) 220 Cal.App.3d
372, 387.) Although appellant was standing next to an officer during the in-field
identification, the identification occurred hours after the incident and appellant was not
handcuffed. We find that the show-up was not unconstitutionally suggestive.
       We further find that the in-field identification was not unreliable under the totality
of the circumstances test. Maria saw appellant with appellant’s friend at the bus stop
prior to the incident. When appellant grabbed the necklace from Maria’s neck, Maria
could see appellant’s face up close. Maria noticed scratches on appellant’s face and
possibly a scar. Maria’s father saw appellant walking, with a second girl, in the pajamas
with basketballs. Although appellant had changed her attire by the time of the in-field
identification, Maria recognized appellant by her face, hair, and height. Maria’s
identification occurred only hours after the robbery. Also, Maria identified appellant as
the robber at trial.
       When Chadwick searched appellant’s room, he found maroon or burgundy pajama
bottoms with orange basketballs on them and a pair of boots. Although Maria described
the field of the pajama bottoms as black, these items of clothing still closely matched the
clothes Maria described appellant was wearing during the robbery. Officer Chadwick
saw both a scar and scratches on appellant’s face. These observations provided
corroboration of Maria’s identification of appellant. Appellant has failed to meet her
burden of demonstrating the show-up was unfair. We reject appellant’s constitutional
challenge to Maria’s in-field identification of her.

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                           TESTIMONY OF YOLANDA S.
      Appellant contends the juvenile court abused its discretion when it failed to
exclude Yolanda S. as a witness because she was present in court during the part of the
proceedings involving the January 2012 robbery. Appellant argues she was denied due
process of law under the Fifth and Fourteenth Amendments of the United States
Constitution. We disagree and find that the error, if any, was harmless beyond a
reasonable doubt.
Evidentiary Hearing
      Maria S. spoke English and did not require a translator during her testimony.1 At
the beginning of the hearing, Maria’s father was present and so was Barbara Dodds, a
victim advocate from the probation department. Appellant’s friend, her mother, and her
aunt were also in the courtroom. The court ordered the exclusion of any witnesses not
currently testifying. After defense counsel began his closing arguments concerning the
January 2012 incident, the juvenile court noticed there were other people in the
courtroom. The people in the courtroom were Yolanda S. and Jabes Cabrera, the
certified Spanish interpreter for the Superior Court. The prosecutor indicated they were
present as witnesses for the January 2013 allegations. The court ordered them out of the
courtroom.
      The prosecutor had apparently thought they were finished with the January 2012
case, and people were let into the courtroom because the prosecutor was not anticipating
having closing argument until the end of both cases. The prosecutor indicated she did not
usually handle two petitions at one time and “was taken off guard when [appellant] was
called to the stand.” The prosecutor was not thinking about the other people entering the
courtroom, but about appellant’s testimony.

1     The prosecutor represented to the juvenile court that Maria’s father only spoke
Spanish.



                                              7
       Defense counsel stated he did not understand how the prosecutor could not
understand his client was testifying, his client had a right to testify, and defense counsel
never indicated she would not testify. Defense counsel noted that the two incidents were
very similar and stated he did not know if Yolanda should testify. The juvenile court
noted that Yolanda should not have been in the courtroom.
       The court called Cabrera, who testified that he had met Yolanda ten minutes
earlier. Cabrera was sitting next to Yolanda during proceedings involving the January
2012 robbery. He did not interpret the proceedings for Yolanda. When the court ordered
them out of the courtroom, Yolanda asked him what the court had said. Cabrera did not
think Yolanda understood English and told Yolanda they had to leave the courtroom.
       The court called Dodds, who was also sitting with Yolanda. Dodds explained that
she did not speak Spanish and Yolanda was a Spanish speaker. Dodds only told Yolanda
that Yolanda had a right to have an advocate present during the hearing. Dodds did not
tell Yolanda anything about the prior robbery. Dodds also told Yolanda about the
process of giving testimony and taking the oath. Dodds had no other conversation with
Yolanda. The juvenile court found that there was no prejudice to appellant and permitted
Yolanda’s testimony.
       During her testimony, Yolanda stated that she spoke only a little English. She also
stated when she was at the hearing on the other case, she did not understand anything that
was happening. Twice during her testimony, Yolanda started to answer questions before
the interpreter could finish his translation of the question. On cross-examination, defense
counsel stated that there were times when Yolanda appeared to understand the question
before the interpreter finished his translation and asked Yolanda if she was able to
understand the questions without translation. Yolanda replied that she understood a
“word here and there” but not an entire sentence.




                                              8
Analysis
       Pursuant to Evidence Code section 777, a trial court may exclude any witness
from the courtroom who is not at that time under examination so that witness does not
hear the testimony of other witnesses. The purpose of a witness exclusion order is to
prevent tailored testimony and aid in the detection of testimony that is less than candid.
(People v. Valdez (1986) 177 Cal.App.3d 680, 687.) The remedy for violation of the
exclusion order is usually contempt rather than disqualification of a witness. (Id. at p.
692.) Where fault is shared by counsel or the party in violating the order, a court can
order the disqualification of a witness. Only where there is no fault by counsel or a
witness, is contempt the sole sanction. (Id. at pp. 695-696.)
       Where a witness exclusion order is violated, the violation does not mean a
defendant has been denied a fair trial. (People v. Adams (1993) 19 Cal.App.4th 412,
436.) The trial court’s ruling is reviewed on appeal for abuse of discretion. (People v.
Tully (2012) 54 Cal.4th 952, 1004; People v. Wallace (2008) 44 Cal.4th 1032, 1053
(Wallace).)
       From the comments of the juvenile court, the prosecutor, and defense counsel, it
appears that Maria S. and victim advocate Dodds were in court during Maria’s testimony.
At some point just before or during appellant’s testimony, Yolanda and interpreter
Cabrera entered the courtroom and stayed through counsels’ closing arguments until the
court ordered them to leave the courtroom. From the testimony of Yolanda, Cabrera and
Dodds, it is undisputed that Yolanda understood very little English, required a translator
during the proceedings, and that while she was in the courtroom during some or all of
appellant’s testimony and counsels’ closing arguments concerning the January 2012
incident, these proceedings were not translated for her.
       The trial court did not find a willful violation of its witness exclusion order by the
prosecution, Yolanda, or the translator. Dodds had a right to be in the hearing as the
victim advocate for both Maria and Yolanda. The prosecutor did not appear to be aware

                                              9
that Yolanda and the translator entered the courtroom during appellant’s testimony. The
prosecutor explained that she was focusing on appellant’s testimony. It is unlikely that
Yolanda and the interpreter heard the juvenile court’s witness exclusion order. There is
no evidence that the prosecutor, Yolanda, or the interpreter were acting contemptuously.
       Most importantly, the record establishes that Yolanda understood very little
English. The chance of Yolanda hearing testimony regarding an unrelated incident that
happened a year before her own that would unduly influence her own testimony is
remote. The potential for undue influence from hearing the proceeding in a language the
witness does not understand, or that she understands poorly, is even more remote. Even
if Yolanda understood some of the proceedings from the earlier incident, appellant has
failed to establish how this information could have affected Yolanda’s testimony or how
it was prejudicial.
       A defendant has to explain how a witness’s attendance at the proceeding altered
the outcome of his or her trial. A defendant who has failed to do so has also failed to
demonstrate prejudice. (Wallace, supra, 44 Cal.4th at p. 1053.) Appellant has failed to
show how Yolanda’s attendance during the hearing on the other incident affected the
outcome in the second proceeding. Finally, we find that if any error occurred in the
juvenile court’s order permitting Yolanda to testify, the error was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
                                     DISPOSITION
       The juvenile court’s orders and findings are affirmed.




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