Filed 7/30/13 In re M.R. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re M.R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.
M.R.,                                                                A136942
         Defendant and Appellant.                                    (Contra Costa County
                                                                     Super. Ct. No. J0701950)



         Following a contested jurisdictional hearing, allegations that the minor, already a
ward of the court, committed a robbery while armed with a firearm (Pen. Code, §§ 211,
12022, subd. (a)(1)) were sustained. The minor was continued as a ward of the court and
committed to the Youthful Offender Treatment Program for a period not to exceed 96
months. In this timely appeal, the minor contends that his counsel below was ineffective,
due to his failure to object to the introduction of a prior identification of the minor, both
on hearsay grounds and because the identification procedure violated his due process
rights. We disagree and affirm.
                                             I. Factual Background
         According to information originally given to the police, on June 3, 2012, 16-year-
old D.R. (hereinafter “the victim”) was stopped by three youths, later identified as the
minor in the current appeal (M.R.; hereinafter “the minor”), B.M. and M.E. One of the


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youths initially asked the victim for a cigarette and the victim gave him one. The
suspects walked away, telling the victim and his brother to wait for them. The victim and
his brother waited approximately five to seven minutes. The victim’s brother (K.R.) fled
the scene, fearing that a robbery was going to occur. Subsequently, the youths returned
and one of them pointed a gun at the victim while the others took $85 in cash and two
cell phones from him.1
       Shortly after 2:00 p.m., multiple Oakland police officers responded to the scene of
the reported robbery. Officer Negrete was the first to arrive on the scene. The reported
robbery victim flagged down the officer and was providing a description of the robbers
when the victim pointed out the three youths who had robbed him, saying, “That’s them.”
Officer Negrete got in his car, drove north on Mandela toward 12th Street (where he had
seen three persons cross the street). He stopped his vehicle about 20 feet from the three
individuals, got out, and told them to stop. The three youths fled. One suspect (B.M.)
ran south on Mandela and entered an apartment complex. Officer Negrete followed the
other two, who fled east on 12th Street. The two youths began to climb a fence; Officer
Negrete grabbed M.E. and pulled him down. He saw a black pistol fall to the ground
from the waistband of M.E.’s pants. The gun was a loaded Ruger .22 caliber
semiautomatic pistol. The minor, M.R., was able to temporarily escape by climbing to
the other side of the fence.
       Officer Negrete handcuffed M.E. and stayed with him until other officers arrived
to establish a perimeter. A subsequent search of M.E. revealed several cell phones and
currency. Several other officers responded to the area. The victim and his brother later
pointed out two of the perpetrators of the robbery to Officer Evans. She drove south on
Mandela Street in order to intercept them. She saw the minor and B.M. at the southern
end of the apartment complex, behind a fence. She told them to stop, but they turned to
head north in the complex. Officer Evans drove north and stopped at the other side of

       1
         The victim later recanted much of this information, when testifying at the
jurisdictional hearing. His basic account of the robbery, given to Officer Chan, was
introduced through the testimony of Chan.

                                             2
another fence that was between her and the suspects. She ordered them at gunpoint to
stop and lie on the ground. The minor complied, but B.M. remained standing. Other
officers arrived to assist. Officer Evans climbed the fence and searched B.M., finding
cell phones, earphones, and currency. Officer Low pat searched the minor, found no
weapons, and escorted him to a patrol car.
       The victim was interviewed by Officer Chan, and conveyed that he had been
robbed by three Black juveniles, one of whom pointed a gun at him while the others
removed the contents of his pockets. Officer Chan drove the victim to 12th and Mandela
Streets, where he identified an individual as one of the assailants who went through his
pockets. Chan then drove the victim to 12th and Kirkham Streets, where he identified the
minor and B.M., saying that B.M. held the gun to his chest during the robbery, and the
minor (and the other youth that he previously had identified) went through his pockets.
The victim signed a handwritten statement prepared by Officer Chan, setting forth the
details of the robbery and his identification of the suspects. The minor was fully searched
after he was identified by the victim; a cell phone and charger, a Clipper card, and $141
were found on his person.
                                      II. Discussion
       On appeal, the minor claims that his counsel below was ineffective, in that he did
not object to Officer Chan’s testimony that the victim identified the minor as the robber
who went through his pockets, based upon the prior identification allegedly being
inadmissible hearsay and being the result of an unduly suggestive pretrial identification
procedure. The minor’s argument fails, as he has not demonstrated that counsel’s
performance was ineffective or that prejudice resulted.
       “A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction . . . has two components.” (Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland); accord, People v. Fosselman (1983) 33 Cal.3d
572, 583–584 (Fosselman).) “First, the defendant must show that counsel’s performance
was deficient.” (Strickland, supra, at p. 687.) Specifically, he must establish that
“counsel’s representation fell below an objective standard of reasonableness . . . under


                                             3
prevailing professional norms.” (Id. at p. 688.) Our scrutiny of defense counsel’s
performance must be highly deferential. We presume that defense counsel’s conduct
falls within a wide range of reasonable representation. (Id. at p. 689.) A defendant must
overcome the presumption that under the circumstances, the challenged action might be
considered a sound tactical decision (ibid.; see In re Lucas (2004) 33 Cal.4th 682, 722),
and “ ‘ “[if] the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the claim on
appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266–267.) Only rarely will a failure to object to
the introduction of evidence provide the basis for a successful ineffective assistance of
counsel claim. Such matters are within counsel’s discretion and rarely constitute
ineffective assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.)
       In addition to showing that counsel’s performance was deficient, a criminal
defendant must also establish prejudice. (Strickland, supra, 466 U.S. at pp. 691–692.)
“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Id. at p. 693; Fosselman, supra, at pp. 583–584.) Specifically, “[w]hen a
defendant challenges a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” (Strickland, supra, at p. 695.)
       In the present case, no inquiry was made below of counsel for the minor as to why
no objection was made, on either proffered basis, to the introduction of evidence
regarding the prior identification of the minor. The minor must, therefore, bear the
burden of demonstrating that there was simply no satisfactory basis for not objecting (that
the decision was not made for sound tactical reasons), as well as demonstrating prejudice
as a result.


                                              4
A. Failure to Object on Hearsay Grounds
       Officer Chan testified, without objection by defense counsel, that the victim
identified the minor as one of the individuals who robbed him (one of the persons who
went through his pockets while another individual held a gun on him). The minor claims
that this testimony was hearsay, and was not admissible under the prior identification
exception to the hearsay rule (Evid. Code, § 1238).2 Section 1238 requires that in order
for evidence of a prior identification to be admissible it must be demonstrated that:
(a) the statement is an identification of a party . . . who participated in a crime or other
occurrence; (b) the statement was made at a time when the crime or other occurrence was
fresh in the witness’[s] memory; and (c) the evidence of the statement is offered after the
witness testifies that he made the identification and that it was a true reflection of his
opinion at the time. The minor contends that the requirements of subsection (c) were not
met, as the victim testified that he did not recall identifying the people who robbed him,
although he later stated that he thought the police “had the right guys.” When asked
again if he believed that the police had caught the right persons he responded, “I think so,
yes. I don’t know.” He was, of course, unable to identify the minor in the courtroom.
       Given the victim’s equivocation, defense counsel could reasonably have made a
sound tactical decision not to object, concluding that the requirements of section 1238,
subsection (c) had been met. Counsel may also have made a tactical decision not to
object, as the victim’s prior identification would have been admissible as a prior
inconsistent statement under section 1235. The minor’s contention on appeal that the
statement could not be admissible under section 1235, as section 1238 is the more
specific provision and must prevail, fails. The two hearsay exceptions are aimed at
different situations: section 1238 applies when a witness admits the prior identification
and verifies its accuracy; section 1235 applies when the witness denies having made the
identification or otherwise testifies in a manner inconsistent with his prior statement of
identification. Were the minor’s argument to prevail, it would effectively prevent the


       2
           All further statutory references are to the Evidence Code.

                                               5
prosecution from ever proving the identity of the perpetrator of a crime when the witness
recants his prior identification and refuses to identify the perpetrator in the courtroom.
       The minor has failed to meet his burden of demonstrating that there was no
satisfactory explanation of trial counsel’s failure to object. Additionally, since the prior
identification would have been admissible even if he had objected, no prejudice has been
demonstrated.
B. Failure to Move to Suppress the Out-of-Court Identification Based Upon Due Process
Grounds
       The minor also contends on appeal that trial counsel was ineffective for not
moving to suppress the out-of-court identification on the grounds that the identification
procedure violated his due process rights. 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. 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.’ [Citations.]
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. The minor was presented to the victim for


                                               6
an in-field identification procedure, shortly after he was detained by the police. The
victim remained in Officer Chan’s police car; the minor stood in front of another police
car. The minor was handcuffed and standing next to another police officer. The minor
was standing 30 to 45 feet away from the victim at the time of the identification. The
victim identified the minor as one of the persons who went through his pockets. The
victim also identified another individual at that location, and indicated he was the person
with the gun. He had already indentified the third robber at a different location.
       Identifying the perpetrators of this crime quickly was a necessity, as a robbery by
three 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, the minor and the other two suspects would have had to have been detained
for a protracted period of time. Despite the minor’s citation to older California and out-
of-state authority condemning one-person showups, the California Supreme Court has not
declared such showups to be unconstitutionally suggestive in all circumstances.
       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.)
       Assuming, without deciding (as the court did in Ochoa), that the standard of
review regarding suggestiveness is by independent review, we find that the minor has
failed to meet his burden of demonstrating that the identification process here was


                                             7
impermissibly suggestive and unnecessary. Officer Chan admonished the victim that the
individuals he was shown might or might not be involved with the crime, and might or
might not be the suspects. Chan did not signal to the victim that he should identify the
minor as the person who went through his pockets. He put no pressure on the victim, nor
did he use any intimidation, to get him to identify anyone. 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 suspects
involved in an armed robbery, in order to protect citizens and to possibly allow the
detained individuals 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 the minor
was otherwise reliable, considering the totality of the circumstances and factors identified
in Manson, supra, 432 U.S. at pages 104–107. The victim had two opportunities to view
the minor and his companions, in daylight (once when they approached to ask for a
cigarette and then when they returned to rob the victim); during those periods nothing
would indicate that the victim’s attention was distracted from the minor and his
companions; other than a mistake regarding the weight of the individual who went
through his pockets, the victim’s description of the minor to the police before the
identification procedure was accurate;3 the victim appeared certain of his identification at


       3
         On appeal, the minor makes much of the fact that the victim’s description of him
was incorrect with regard to his weight (being off by some 40-50 pounds). However, the
description referred to in the minor’s opening brief is the detailed description given by
the victim after he viewed the in-field identification procedure. The victim and his
brother had begun to describe the suspects right after they flagged down the police, but
the process was interrupted when they observed the suspects on the street and pointed
them out to the police. Officer Negrete, who received the initial (pre-identification

                                              8
the time it was made; and less than an hour elapsed between the robbery and the in-field
identification procedure. The minor “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.
       The minor has failed to meet his burden of showing that his trial attorney’s
decision not to challenge the identification procedure on due process grounds was not
made for sound tactical purposes. He has not demonstrated that there could be no
satisfactory explanation for his failure to move to suppress the identification, as the trial
court in all likelihood would have denied the motion for the reasons set forth above. For
the same reason, the minor has failed to show that prejudice resulted from his trial
counsel’s inaction in this regard.




procedure) description of the suspects was prevented from testifying regarding the details
of that description, such as height and weight, due to hearsay objections by defense
counsel.


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                                      III. Disposition
       The minor has not satisfied either prong of the Strickland test for ineffective
assistance of counsel. 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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