Filed 10/24/13 In re R.H. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re R.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,                                                          A135875
         Plaintiff and Respondent,
                                                                     (San Mateo County
v.                                                                   Super. Ct. No. 77805)
R.H.,
                                                                     ORDER MODIFYING OPINION
         Defendant and Appellant.                                    AND DENYING REHEARING
                                                                     [No Change in Judgment]



THE COURT:
It is ordered that the opinion filed herein on September 25, 2013, be modified as follows:
     1. On page 2, the last sentence of the first full paragraph, delete the word ‘Next” so
         the sentence reads: “Luis was sitting on Carlos’s green BMX bicycle.”

     2. On page 3, delete the sixth and seventh sentences of the first full paragraph:
         “After the robbers started to leave, appellant returned and took Carlos’s bicycle.
         He rode away on the bike, with U.K. running alongside.” Replace the deleted
         sentences with a single sentence stating, “After the robbers started to leave, one of
         them came back, grabbed Carlos’s bicycle, then rode off on it as the other robber
         ran alongside.”



                                                             1
3. On page 4, at the bottom of the first full paragraph, delete the sentence stating,
   “He indicated he was involved in gangs and that gang members had to follow
   orders,” and insert the following sentence in its place, “He stated that in his prior
   involvement with gangs he’d been told to follow orders and not ask questions.”


There is no change in the judgment.
The petition for rehearing is denied.




Dated: ____________________________                  ___________________________
                                                           Dondero, Acting P.J.




                                          2
Filed 9/25/13 (unmodified version)
                        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.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FIRST APPELLATE DISTRICT

                                                   DIVISION ONE


In re R.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.
R.H.,                                                                  A135875
         Defendant and Appellant.                                      (San Mateo County
                                                                       Super. Ct. No. 77805)



         After a contested jurisdictional hearing, allegations of an amended petition
alleging appellant committed two counts of robbery (Pen. Code, §§ 211, 212.5)1 while
armed with a firearm (§ 12022, subd. (a)(1)), and two counts of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(2)) were sustained. Special allegations pursuant to
section 1192.7, subdivision (c)(23) (alleging that the offenses were serious felonies
because appellant personally used a dangerous or deadly weapon)2 were also sustained as
to the two counts of assault with a deadly weapon. Appellant was continued as a ward of
the court and probation was reinstated, on condition that the then 19 year old serve 830
days in county jail. On appeal, appellant contends that the admission of evidence of his
         1
             All further statutory references are to the Penal Code.
         2
          It is unclear why the allegation was alleged pursuant to section 1192.7, subdivision (c)(23), which
references use of a deadly or dangerous weapon, rather than pursuant to section 1192.7, subdivision (c) (8) which
references use of a firearm. The only weapon that was used was a firearm.



                                                             1
in-field identification violated his due process rights, that the court’s findings pursuant to
section 1192.7, subdivision (c)(23) were not supported by sufficient evidence, and that
the juvenile court erred in setting his maximum term of confinement (MTC). We agree
with appellant’s last two contentions and remand.
                                       I. Background
       After the petition was amended on motion of the district attorney, to allege that
appellant was only armed with a firearm during the commission of the robberies (rather
than the original allegation that he personally used a firearm), the juvenile court
conducted a combined jurisdictional hearing and evidentiary hearing on appellant’s
motion to suppress the results of the in-field identification procedure. The evidence
adduced at that hearing indicated that on the evening of October 5, 2010, at
approximately 7:50 p.m., two minors (16-year-old Carlos R. and 15-year-old Luis G.)
were standing on a corner in Redwood City. It was almost dark; the street lights were
illuminated. Luis was sitting on Carlos’s green “Next” BMX bicycle.
       Two individuals (appellant and U.K., a juvenile), approached the victims. Both
wore dark hoodies with the hoods up over their heads, jeans with rolled up cuffs, and
black leather-style sneakers resembling Vans “Off the Wall” shoes. Both were shorter
than the victims, who were six feet tall. As U.K. and appellant approached the victims,
they pulled up masks to cover their faces. U.K. pulled a bandana over his lower face and
nose; he was holding a black handgun and flashed it at the victims. He then put the gun
back into the front pocket of his hoodie. Appellant’s mask was a black mask resembling
the “Phantom of the Opera” mask; it covered part of his face, but did not cover his eyes,
eyebrows, nose or mouth. The victim, Carlos, thought it was unusual that both
individuals had cuffed jeans on. Carlos later identified a mask seized by the police as the
mask that was worn by appellant during the ensuing robbery.
       Appellant and U.K. ordered the victims to lie on the ground and to hand over their
valuables. U.K. pushed Luis to the ground and told him that he was going to shoot him if
he looked back. A similar threat, that he would be shot if he looked back, was made to
Carlos, by appellant. Luis felt the gun was real, as U.K. was pointing it at him and acting


                                              2
like he was going to shoot him. Luis felt the object when it was put to his head and it felt
like a gun―it was cold like it was made of metal. Luis testified that he was afraid―he
was “panicking.” He said that he and Carlos were ordered to take everything out of their
pockets. He complied and emptied his pockets of $40 in cash and some other items,
because U.K. “was pointing a gun” at him. U.K. also removed a gold chain from Luis’s
neck, and took his shoes (despite Luis’s protestations due to the cost of the shoes).
       Carlos told appellant that he had nothing on him. When appellant removed a $10
bill from Carlos’s pocket, he waived it in front of Carlos’s face. Subsequently, one of the
robbers hit Carlos on the head with the butt of the gun (cutting his scalp). Neither of the
victims was directly asked which robber struck Carlos. The robbers also took Carlos’s
shoes. After the robbers started to leave, appellant returned and took Carlos’s bicycle.
He rode away on the bike, with U.K. running alongside. The victims went to Luis’s
house and called 911. Police arrived within three minutes, summoned paramedics to treat
Carlos, and took a description of the robbers and the stolen bicycle. Within three-to-five
minutes of the robbery information going out through dispatch, Officer Cang saw
appellant walking a BMX bicycle on the sidewalk, which he found unusual at that time of
night. He contacted appellant, who was sweating and nervous (appellant kept looking
around). Appellant was wearing dark clothing―a black zipped up hoodie and dark blue
jeans. The bicycle matched the description of the stolen bike, including distinctive white
tape on the handle. Officer Cang, along with Officer Mateo, conducted an in-field
identification, the details of which will be discussed below.
       Officer Fine responded to the area within five-to-seven minutes of the dispatch,
and at Cang’s request he walked back along the street appellant had been walking down.
On the same side of the street, about three houses from the location where appellant was
detained, Officer Fine located a black mask discarded in the front yard of a home. Luis
identified appellant, the bicycle, and the mask. Carlos also identified appellant and the
stolen bicycle. He also identified the black mask as the one worn by the person who stole
his bicycle.



                                             3
       After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436),
appellant gave conflicting stories of how he came to be in possession of the bicycle and
the mask. He later indicated that he feared for his family if he revealed who his
accomplice was in the taking of the bicycle, and asked how many years he was going to
spend at the California Youth Authority. At the jurisdictional hearing, appellant testified
that he did not commit the robberies. He said that he was walking around with a friend
named D.E. when another friend named O.M. drove up with a stolen bicycle and the
mask, and asked him to get rid of them. Appellant took both items and tossed the mask
toward a house; he was walking the bicycle up the street when he was stopped by the
police. On cross-examination, appellant changed his testimony and admitted that he
owned the black mask “all the time,” and that he had lied to the police. He indicated he
was involved in gangs and that gang members had to follow orders. The defense
additionally called J.R. (a 16 year old) to testify regarding certain statements made by
Luis regarding the robbers.
       Based upon this evidence, the court sustained all allegations of the amended
petition, as detailed above, continued appellant as a ward, reinstated his probation and
ordered him to serve 830 days in jail. This timely appeal followed.
                                       II. Discussion
A. The In-field Identification Procedure Did Not Violate Due Process.
       An out-of-court identification procedure violates due process if the procedure is
impermissibly suggestive, giving rise to a very substantial likelihood of irreparable
misidentification. (Stovall v. Denno (1967) 388 U.S. 293, 301–302.) Even if the
identification procedure is unduly suggestive, and unnecessarily so, the identification is
still admissible if otherwise reliable under the totality of the circumstances. Factors the
court will look at to determine the reliability of the identification include the opportunity
of the witness to view the suspect at the time of the crime, the witness’s degree of
attention at the time of the crime, the accuracy of any prior descriptions of the suspect
given by the witness, the level of certainty of the witness in his identification of the
suspect, and the lapse of time between the crime and the identification. (Manson v.


                                              4
Brathwaite (1977) 432 U.S. 98, 111–112, 114 (Manson); People v. Cunningham (2001)
25 Cal.4th 926, 989 (Cunningham).) As our Supreme Court recently noted, “ ‘[i]f, and
only if, the answer to the first question is yes and the answer to the second is no, is the
identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a
challenged procedure is not impermissibly suggestive, our inquiry into the due process
claim ends.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)
       In the present case, our inquiry could end with a finding that the identification
procedure was not impermissibly suggestive. In Ochoa, the court first noted that the
standard of review for a claim of undue suggestiveness is unsettled, and declined to
resolve the issue, but went on to find the particular procedure in that case passed muster
even under the independent review standard. (Ochoa, supra, 19 Cal.4th at p. 413.) The
court then specifically declared that “ ‘[t]he “single person showup” is not inherently
unfair.’ [Citation.]” (Ibid.) As the court explained, in order for a witness identification
procedure to violate due process, the state must improperly suggest something to the
witness―it must “initiate an unduly suggestive procedure.” It is only a procedure that
suggests the identity of the person suspected by the police in advance of identification of
the suspect by the witness that is unfair. (Ibid.) The California Supreme Court has not
declared such showups to be unconstitutionally suggestive in all circumstances.
       Assuming, without deciding (as the court did in Ochoa), that the standard of
review regarding suggestiveness is by independent review, we find that appellant has
failed to meet his burden of demonstrating that the identification process here was
impermissibly suggestive and unnecessary. Appellant was presented to the victims for an
in-field identification procedure shortly after he was detained by the police. The
identification of appellant by the victims occurred within minutes of the robbery. The
victims’ memories of the events were fresh in their minds, including their descriptions of
the suspects, the suspects’ clothing, and their masks. While officers were present at the
scene of the identification, that alone does not make the identification suggestive. (Perry
v. New Hampshire (2012) ___ U.S. ___, ___ [181 L.Ed.2d 694, ___, 132 S.Ct. 716, 718–
719 [must be improper police conduct involved].) Officer Mateo admonished the victims


                                              5
pursuant to a standard field identification form, including an admonition that they did not
have to identify the individual they were being shown as having been involved with the
crime. The officer did not signal to the victims that they should identify appellant as one
of the robbers. He put no pressure on the victims, nor did he use any intimidation, to get
them to identify anyone.
        Identifying the perpetrators of this crime quickly was a necessity, as a robbery by
two individuals involving the use of a firearm had just occurred. Removing the
individuals responsible for this violent crime from the streets in an expeditious manner
was a priority; the in-field showup procedure accomplished that need. Additionally, in
order to take advantage of any other identification procedure, such as a photographic or
live lineup, appellant would have had to have been detained for a protracted period of
time.
        The identification procedure was not unduly suggestive, and given the nature of
the crime that had just been committed, was necessary under the circumstances to quickly
apprehend the suspects involved in an armed robbery, in order to protect citizens and to
possibly allow the detained individual to go free if not identified. Indeed, single person
showups for in-field identifications are encouraged because any element of
suggestiveness is offset by the reliability of an identification made while the events are
fresh in the witness’s memory and because the interests of both law enforcement and
suspects are best served by an immediate determination as to whether the correct person
has been apprehended. (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)
        Our inquiry could end here, but we also note that the identification of appellant
was otherwise reliable, considering the totality of the circumstances and factors identified
in Manson, supra, 432 U.S. at pages 104–107. The victims were able to observe the
robbers, from close up, for a period of time and to observe their appearance, including
their height, unusual clothing (including cuffed jeans and Vans-style shoes) and masks.
The identification was made within minutes of the crime, while the events were fresh in
the victims’ minds. Additionally, the identification of appellant was corroborated by the
discovery of the victim’s bicycle in his possession, and by the discovery nearby of the


                                              6
distinctive mask that he wore during the robbery. Appellant “bears the burden of
demonstrating the existence of an unreliable identification procedure. [Citations.]”
(Cunningham, supra, 25 Cal.4th at pp. 989–990.) He has failed to do so here. Under the
totality of these circumstances, the identification was reliable.
B. Penal Code Section 1192.7 Finding Was Not Supported by Sufficient Evidence.
       The petition, as originally filed in this case, alleged as to the two robbery counts
that appellant personally used a firearm, pursuant to section 12022.53, subdivision (b).
Prior to the taking of evidence at the jurisdictional hearing, the prosecutor filed an
amended petition which replaced the use allegation with an allegation that appellant was
armed with a firearm, pursuant to section 12022, subdivision (a)(1). Since the
enhancement for being armed carries a much lighter sentence (one year) than that for
using a firearm during the commission of a robbery (10 years), the amendment was
presumably made by the prosecution in recognition of a lack of evidence of personal use
by appellant. Use of a firearm requires personal use; arming may be vicarious arming.
       However, the amended petition let stand separate allegations with regard to the
two counts of assault with a deadly weapon―that they were serious felonies under
section 1192.7, subdivision (c)(23) because appellant personally used a deadly or
dangerous weapon―and the juvenile court found these to be true. As the only deadly or
dangerous weapon that was used in this case was a firearm, these latter allegations could
only refer to appellant’s alleged use of a gun. While robbery is a crime specifically
enumerated as a serious felony (Pen. Code, § 1192.7 subd. (c)(19)), assault with a deadly
weapon is not specifically enumerated as a serious felony. Whether or not it is
considered to be a serious felony depends upon the manner in which it was committed,
including an enumerated factor such as use of a firearm (Pen. Code, § 1192.7, subd.
(c)(8)) or use of a deadly or dangerous weapon (Pen. Code, § 1192.7, subd. (c)(23)).
Such factors may be pleaded and if found to be true, may impact the future determination
of whether the assault with the deadly weapon conviction will be considered a serious
felony for enhancement purposes.



                                              7
       From the record, it is not at all clear that appellant personally used a firearm.
Neither victim testified as to which suspect struck Carlos in the head with a gun; neither
was specifically asked the question. Luis testified that it was U.K. whom he initially
observed with a firearm. While he heard appellant threaten Carlos (“if he looked back at
him he was gonna get shot”), he specifically said that he did not know if appellant had a
gun. The Attorney General’s speculation that appellant either had his own gun, or
borrowed the one that U.K. had, in order to hit Carlos, is just that―speculation. Contrary
to what the Attorney General argues, the record does not support the conclusion that
appellant necessarily was focused on and standing beside Carlos, where as U.K. was
focused on and standing beside Luis. While the record supports the inference that this
was true initially, and that appellant went through Carlos’s pockets and showed him the
$10 bill that he found, the robbers’ positions apparently changed thereafter. Carlos
testified that after the money was taken from him, both robbers got behind him, so he did
not know which one took his shoes. Again, the record is not clear is this regard because
neither attorney below clarified these issues in their questioning of the victims. Carlos
appears to have been hit in the head with the gun after his money was taken, and before
his bike was stolen; it is unclear whether he was hit before or after his shoes were taken,
or by whom. However, the robbers’ positions did not remain stationary. Indeed, it
appears that appellant was the individual who went over and took Luis’s shoes.
Thereafter, appellant went back to Carlos and after “they” removed Carlos’s shoes, the
robbers ran away. Luis believed it was appellant that returned and took the bike, and then
both robbers left. Additionally, the mere fact that appellant told Carlos that if he looked
back at the robbers he would be shot, does not mean that he was necessarily the one who
was going to shoot him. While appellant may have been upset when he found money in
Carlos’s pocket after Carlos said he did not have anything, that by itself is insufficient
evidence that it was he, rather than U.K., who hit Carlos with the gun.
       Given all the evidence, including the fact that U.K. was the only individual seen
by Carlos or Luis with a gun, there was insufficient evidence to support the finding that



                                              8
appellant personally used a weapon.3 The juvenile court’s finding that the assault with a
deadly weapon was a serious felony due to appellant’s use of a deadly or dangerous
weapon pursuant to section 1192.7, subdivision (c)(23) is reversed.4
C. The MTC Must be Modified.
         The juvenile court asked the prosecutor what the MTC was on the “charges that
were sustained by the court.” The prosecutor responded that it was 11 years six months,
the defense attorney agreed, and without analysis or explanation the juvenile court merely
adopted that figure. The MTC was not reflected, however, in the disposition order.
While the Attorney General agrees that the disposition order should be amended to reflect
the MTC, there is disagreement as to what the MTC is.
         We remand for the juvenile court to determine itself, in the first instance, the
appropriate MTC and to explain its reasoning on the record. The MTC shall then be
included in the disposition order. First, as the Attorney General notes, the MTC must
reflect not only the maximum punishment on the charges which were sustained by the
juvenile court at this jurisdictional hearing, but also any appropriate periods aggregated
from appellant’s prior petition, which were included in the current petition and
disposition report.5 Second, the juvenile court should determine the MTC for the
allegations that it sustained on the current petition, making findings regarding whether or
not the court is staying any punishment pursuant to section 654. Part of the Attorney
General’s argument in this regard misses the mark, as appellant is not contending that
punishment should be stayed as between counts relating to separate victims, but rather
that the assaults with a deadly weapon as to each victim were incidental to each of the

         3
        The remainder of the Attorney General’s argument is totally off point, as it addresses the arming
enhancement under section 12022, subdivision (a) rather than the 1192.7, subdivision (c)(23) use allegation at issue
here.
         4
            From the juvenile court’s finding, it is unclear that the court was truly finding that the assaults with a
deadly weapon were serious felonies under section 1192.7, subdivision (c)(23), even though that was clearly what
was alleged. The court in sustaining the various allegations in the petition was referencing special allegations
specifically attached to counts one and three (the robberies) when it made those findings. The court may simply
have been finding that robbery is a serious felony under section 1192.7, subdivision (c)(19), despite its recitation
that the finding was under section 1192.7, subdivision (c)(23).
         5
          Again, the parties disagree substantially with regard to whether these particular prior adjudications should
be included in the MTC, and if so, what the appropriate amount of time to be added would be.


                                                           9
respective robberies and should, therefore, be stayed. The Attorney General’s argument
that appellant had a separate criminal objective in striking Carlos with a gun is not
relevant given our finding that there was insufficient evidence that appellant was the
individual who struck Carlos. The juvenile court should make the determination as to
whether section 654 requires staying the punishment for each of the assault with a deadly
weapon charges and indicate the basis for its reasoning. The matter is remanded for the
juvenile court’s proper determination of the MTC.
                                      III. Disposition
       The juvenile court’s findings regarding the allegations pursuant to section 1192.7,
subdivision (c)(23) are reversed. The matter is remanded to the juvenile court




                                             10
for determination of the MTC, in a manner consistent with this opinion. In all other
respects, the judgment is affirmed.




                                                  ______________________
                                                   Sepulveda, J.*


We concur:


______________________
 Dondero, Acting P.J.

______________________
 Banke, J.




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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