Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Gibson W. Lee, Judge. Modified, affirmed in part, and reversed in part. Los Angeles County Super. Ct. Nos. NJ21281, NJ21839 NJ21840, NJ21841, NJ21842 NJ21846, NJ21843, NJ21844, NJ21845
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant Emerald R.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant Sade W.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Brit. W.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Anthony R.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Antoinette R.
Torres & Torres and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Tan. C.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Breana S.
Schonbrun, DeSimone, Seplow, Harris & Hoffman, Paul L. Hoffman, Adrienne Quarry, and Rebecca M. Hamburg; and Michael Shultz, under appointment by the Court of Appeal, for Defendant and Appellant Christina S.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant Allyson S.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Shawn M. Webb, and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Christina S., Tan. C., Breana S., Brit. W., Emerald R., Sade W., Allyson S., Antoinette R., and Anthony R. (collectively minors) appeal from the juvenile court’s orders declaring them wards of the court. The court found that minors committed three assaults with force likely to produce great bodily injury and, except as to Emerald, determined that the hate crime allegations were true. (Pen. Code, §§ 245, subd. (a)(1), 422.75, subd. (b).) The court also found that Anthony and Brit. personally inflicted great bodily injury on Laura Schneider and Loren Hyman, and that Christina, Breana, and Sade personally inflicted great bodily injury on Laura Schneider. (§ 12022.7, subd. (a).) Minors were placed home on probation and given credit for time served.
A tenth minor, Shanice M., was charged. The court found the allegations in her petition not true.
All further undesignated statutory references are to the Penal Code.
Minors contend: (1) the evidence is insufficient to sustain the true findings on the assault counts; (2) the evidence is insufficient to sustain the true findings on the hate crime and personal infliction of great bodily injury allegations; (3) the field showup was unduly suggestive; (4) the court erred by failing to appoint an eyewitness identification expert; (5) the court erred by shackling them during the adjudication; (6) the prosecutor engaged in misconduct; (7) cumulative error requires reversal; (8) certain probation conditions must be stricken or modified; and (9) the court erred by setting maximum terms of confinement.
Each minor joined in the relevant arguments of coappellants.
Individually, Christina claims the court erred by denying her request to allow private counsel to substitute in as attorney of record. Brit. argues the trial court should have stricken a statement she gave to police, as it was taken in violation of her Miranda rights. She also asserts the court did not presume her innocent at the outset of the adjudication. Emerald urges that the court should have excluded blood evidence admitted against her. Anthony contends the court erred by denying his request for a live lineup. Tan. and Breana claim the minute order that sets forth the terms and conditions of probation must be amended to conform to the court’s oral pronouncement of judgment.
Miranda v. Arizona (1966) 384 U.S. 436.
We reverse the true finding on the section 12022.7 allegation as to Breana, modify certain terms and conditions of minors’ probation, strike the juvenile court’s determination of the maximum term of confinement, and affirm the orders of wardship in all other respects.
STATEMENT OF FACTS
I. The Prosecution Case
A. The Assaults
At approximately 9:00 p.m. on October 31, 2006, Loren Hyman, Laura Schneider, and Michelle Smith, all Caucasian women, arrived in the Bixby Knolls area of Long Beach to look at some of the houses that had been decorated for Halloween. Hyman wore a Betty Boop costume, which included a red dress and red pumps. Schneider portrayed a vampire and had on a black and silver dress, fishnet stockings, and black boots. Smith dressed as a pirate, wearing a black skirt, black tank top, and a bandana. She was carrying a plastic sword.
As they approached a home on the corner of Bixby and Linden that had been transformed into a haunted house, Hyman noticed a large group of people standing near the property. The crowd was on the sidewalk, in the yard of the haunted house, and in the street. As the women were about to go inside the house, a young African-American male called out to them. He was grabbing his crotch and yelling, “Are you with it?” The women did not respond. They entered the house and toured the interior.
On that same evening, Kiana Alford, an African-American, drove to Bixby Knolls with her one-year-old child, her 14-year-old sister, and a friend, Lineshia Hill, to go trick-or-treating. Alford parked her car and as the four occupants emerged from the vehicle, she noticed a group of approximately 30 to 35 “kids” standing on the corner. The group was predominantly female. As Alford walked toward the haunted house, she was approached by two young females who addressed her in an unfriendly manner. One of the girls asked, “What’s up?” Alford became uncomfortable and she and her passengers returned to the car.
After Hyman, Schneider, and Smith exited the haunted house, they decided to leave the area. They walked in the street to go around the crowd, which had gotten larger. As Alford got into her car, she saw the women attempting to cross the street. The people in the crowd began to direct comments toward them. The same young male who had addressed them as they entered the haunted house, again yelled, “Are you with it?” Alford started to move her vehicle forward, bringing her closer to the three women. Members of the crowd started getting louder. A male shouted, “Fuck White people.” Five to seven females called the women “White bitches.” Another male said, “I hate fuckin’ White people.” Someone else yelled, “Stupid White bitches.” Hyman and Alford described the tone of the hecklers as “angry.”
As the women walked, a group of about 25 individuals followed them. After the three crossed the street and reached the corner, members of the crowd began throwing lemons, small pumpkins, and newspapers at them. The women were struck in the head and back by the items, some of which were thrown with great force. Alford remained parked in her vehicle for about two minutes and watched as the objects were being thrown at the women. Alford saw Hyman stop, turn to face the crowd, and put her hands up as if to ask, “What are you doing?” Two females from the crowd approached Hyman and the women exchanged words. Hyman began walking toward her two companions and away from the crowd.
Alford identified the victims by their clothing, not by name. For the sake of clarity, we rely on Hyman’s testimony concerning what each victim was wearing that evening to identify to whom Alford was referring during her testimony.
By this time, the women had reached the sidewalk on Linden and were walking side-by-side. Schneider stopped, turned around, and yelled to the crowd to stop throwing things at them. As she turned to walk toward her friends, Schneider was pulled by the back of her hair and dress by two females. Hyman told Smith that the three were getting too far apart, and Smith said she was going to call 911 on her cell phone. When Hyman turned back toward Schneider, Schneider was halfway to the ground with a crowd of about 15 people around her.
Alford pulled her car from the curb, and as she started to make a left turn, she “saw a lot of the Black kids beating up the three White girls.” At first, she saw Hyman “ambushed” by two girls. “[A]nd from two[,] it became five, then it became more and the girls were — it was like three separate huddles of the girls getting beaten.”
An African-American male in the group attacking Schneider struck her with a skateboard. Hyman ran toward Schneider and was immediately surrounded by approximately 12 individuals, one of whom kicked Hyman in the back of the leg. The attackers were predominantly female and all were African-American. Hyman was punched repeatedly in the face and head. Someone kicked Hyman’s legs, and she fell to the ground. She lay there as a group of eight to ten people punched and kicked her. Hyman could tell that she was being hit by more than one person because of the frequency of the blows. She attempted to defend herself by swinging her arms. She tried to use the cell phone that she had in her hands, but it was knocked to the ground.
Schneider, who was surrounded by eight to ten people, was hit across in the face and rib cage with a skateboard. Alford said Schneider fell to the ground and did not appear to move. As Schneider was lying on the ground, people struck her and stepped on her. Smith was hit in the face, rib cage, and stomach by fists, feet, and a skateboard. There were 10 people around her. As the victims were being beaten, people in the crowd were calling them “bitches.”
Marice Huff and his family were in the area of Bixby and Linden. As they prepared to leave, Huff, who is African-American, noticed that a group of people were throwing lemons and small pumpkins at three White females. One of the women turned to face the crowd, and she was kicked and grabbed by her hair. Huff described the scene as “ugly.” He said, “I heard a bunch of like body shots.... I was seeing just people just attacking, just attacking” all three girls. He observed two of the victims get knocked to the ground. The third victim, Hyman, remained standing. Huff ran toward the melee when he saw Hyman getting kicked.
When Huff got to Hyman, he noticed the other two victims were still on the ground. Huff said Hyman was “just getting rocked, trying so hard, but she couldn’t do nothing. I grabbed her. I moved the girls’ hands off, put her down on the ground, [and] straddled her. The girls are still coming.” He pushed some of the attackers away, and they began to disperse.
As Huff attempted to shield Hyman, he pushed a girl who was trying to hit Hyman and told her, “Girl, you know that’s not right.” The girl stumbled off the curb, came back and tried to kick Hyman, but kicked Huff instead. Another girl said to Huff, “Fuck you, nigger.” He saw the girl who had kicked him lean down to pick up something and run to a red car that was slowly leaving the scene. The people inside the vehicle were saying, “Hurry up. Get inside the car,” and she did.
Alford stopped her car in the middle of the street and started running toward the victims. She saw Huff attempting to keep people from hitting Hyman. At that point, the group that had been assaulting the women scattered. Alford called 911 and asked for an ambulance to respond to the scene.
Alford saw 10 of the people who were beating the victims run to two vehicles. Five, four females and one male, got into a red Mustang. As the females entered the car, the male stood outside and said, “What did I do?” Alford heard the occupants tell the male to “just get in the car.” The Mustang went northbound on Linden. The other five assailants, all females, got into a small, red compact and followed the Mustang. Earlier, Alford had seen a female exit one of the red cars, take off a black Rocawear jacket, put it into the car, and run to join the fray. She began hitting one of the three victims with her fists.
Rocawear is a brand name.
After the crowd dispersed, Alford attempted to assist the victims. Someone helped Hyman to her feet. She was bleeding about the face. Alford said Hyman’s nose was “crooked” and her left eye was black and swollen. She had blood “everywhere” and had difficulty walking and speaking. Schneider was having trouble standing without assistance and complained of pain in her rib cage and back. Smith’s mouth was bloody and she said her rib cage hurt very badly. Hyman and others tried unsuccessfully to find her cell phone.
B. The Police Detain the Minors
On the evening of October 31, Long Beach Police Officer James Clark was working a helicopter unit. He received information concerning the attack that had occurred at Bixby and Linden and was advised that occupants of two red vehicles may have been involved. Within two minutes of receiving the vehicle descriptions, he noticed a red car parked in a Ralph’s grocery store parking lot approximately three-quarters of a mile from the scene of the assaults. Within seconds, he saw a second red car pull up and park next to the passenger side of the first. After remaining stationery for approximately 15 to 30 seconds, one car drove away and was followed by the second. Traveling in tandem, they went to an area by an adjacent office building and parked side by side, leaving one parking space between them. Clark radioed that he had two possible suspect vehicles in view and watched as ground units arrived. He saw officers contact the occupants of the two cars.
Long Beach Police Sergeant John Garry heard the broadcast regarding the suspect vehicles. As he was near the location where they had stopped, he responded. He drove behind a six-story office building and saw the two red cars parked between the office building and a parking structure. The vehicles were not visible from Long Beach Boulevard, the street where the office building and the Ralph’s store were located. Sergeant Garry parked behind the two cars. Some of the occupants of one of the cars began to exit, and he told them that they could not leave the area. Other units arrived shortly thereafter and the occupants were detained for a field showup.
One of the two vehicles, a red Ford Mustang, was driven by Allyson. The other, a red Nissan, was driven by Sade.
C. The Field Showup
Police officers arrived at Bixby and Linden and shortly thereafter Hyman, Schneider, and Smith were told that the police had suspects they thought were involved in the attack. The officer who drove Hyman to the showup recalled telling her that possible suspects were detained and the police wanted her to view them. This officer estimated that the location of the showup was approximately a quarter to a half mile from the scene of the assaults. Prior to seeing any of the suspects, Hyman signed an admonition form. Hyman testified that “[t]he piece of paper instructed us that you should not identify anyone unless you were certain and that there could be people there that were in no way involved or guilty just because they were there.”
The admonition form read: “We are detaining a person for you to view who may or may not be the person who committed the crime now being investigated. The fact that this person is detained, and may or may not be handcuffed, should not influence you. It is just as important to free innocent persons from suspicion as it is to identify guilty persons. [¶] Please look at the detained person carefully and tell me or another officer if you wish to see him or her walk, stand, or move in a particular way or under different conditions, or if you wish to hear him or her speak certain words or phrases. [¶] Do not talk to anyone other than Police Officers while you are viewing the detained person. [¶] After you have had enough time to look at this person, tell me or another officer whether or not you can identify this person.” Above the witness’s name, her signature, and the date were the words, “I understand the above statement.”
About 20 minutes after the two red vehicles left, Alford was told that officers had stopped some suspects they thought had participated in the attack and she was taken to a location to see if she could identify any of them. She expected that she would see the people who had beaten the victims. A black and white patrol vehicle took her to a location a short distance from the site of the melee. Prior to viewing any suspects, Alford saw the two red vehicles she had observed leaving the scene at Bixby and Linden. She read and signed the same written admonition form that was presented to Hyman.
The witnesses who viewed the showup were separated from each other. Each was in a patrol vehicle and accompanied by an officer who wrote the witness’s statement on a field identification report after she saw each suspect. Minors were brought out one by one and placed in front of the witnesses, illuminated by the headlights and overhead lights of several police cars. The witnesses viewed the suspects from a distance of approximately 20 feet.
The first suspect presented was Christina. Hyman immediately recognized her because of her face and the bright white shirt she was wearing. Hyman told the officer that she recognized Christina, and her statement in the identification report was that she thought Christina was involved in the attack of Schneider. Hyman saw her throwing punches in Schneider’s direction. Alford also identified Christina, recognizing the earrings and necklace she was wearing. Alford’s identification form states that Christina had thrown lemons, hitting at least two of the victims.
Tan. was the second suspect. Hyman did not recognize her. Alford identified Tan. and her report reflected that Tan. “hit the girl with the red outfit [Hyman] with her closed fist. The [suspect’s] hood was up at the time.” At the time of the showup, Tan. was wearing an orange hooded sweatshirt.
The third suspect was Breana. Hyman identified her as the person who “hit [her] and Laura. She was on my right side.” Alford did not recognize Breana.
The fourth suspect was Brit. Hyman said “she was standing next to [Breanna S.]. She kicked me in the back of my legs & punched me in the back of my head.” Alford stated that Brit. “was hitting the two girls with her closed fist & feet. The girl w/ the black fishnet stockings & black pumps [Schneider] and the girl w/ the long black dickie shorts & the pony tail on top of her head [Smith].”
The fifth suspect was Emerald. Hyman thought she looked familiar. Hyman remembered her face, but could not recall what, if anything, Emerald did. Alford identified Emerald and stated, “[s]he was throwing the little pumpkins at the three girls. She hit the one w/ the red dress [Hyman] in the back.”
The sixth suspect was Sade. Hyman was unable to identify her. Alford told the officer that Sade was punching Schneider in the face. She also banged Schneider’s head into a tree.
The seventh suspect was Shanice. Hyman did not recognize her. Alford identified Shanice and said she was throwing newspapers at the victims.
The eighth suspect was Allyson. Hyman remembered that she had called the victims “White bitches.” Allyson said this after the pumpkins had been thrown and Schneider had told the crowd to stop throwing things at them. Alford said Allyson struck Smith with her closed fists and stomped on the victims with her feet.
The ninth suspect was Antoinette. Hyman said that Antoinette “hit [her] on the side of the face & top of [her] head. She was screaming & yelling too but I don’t remember what she was saying.” Alford did not recognize Antoinette.
The tenth suspect was the lone male, Anthony. Hyman could not identify him. Alford said, “He kicked [Hyman] in her face, head & back. He also hit [Schneider] with his fist & feet in the back of her head, face, and her rib cage.”
At the showup, one of the officers returned Hyman’s cell phone to her. It was found on the driver’s side floorboard of the Nissan.
Officer David Garcia spoke to Sade and Brit. after they had participated in the showup. They were not handcuffed at the time and were standing together in the parking lot. Garcia asked Sade how Hyman’s cell phone got into the vehicle Sade had been driving. She responded that her sister, Brit., took it. He then asked Brit. if she took the phone. Brit. said that she did. Garcia asked her why, and “[s]he just laughed sarcastically and said, ‘I don’t know.’”
D. The In-Court Identification Testimony
Following the order of minors as they were presented at the showup, we set forth the trial testimony relevant to each. The witnesses were shown photographs of the minors that were taken at the police station after the showup and gave further testimony regarding each minor’s participation in the events of Halloween evening.
Christina
Hyman said she was one of the people who attacked Schneider. Alford recognized her as being someone she identified at the showup. Alford was asked if she saw Christina strike any of the victims with her fists or feet. She responded that she did.
Tan.
Alford testified that Tan. was the girl who approached her earlier in the evening and asked, “What’s up?”
Breana
Hyman stated that Breana’s large earrings styled to look like they were made of bamboo made her stand out in Hyman’s mind.
Brit.
Hyman looked at Brit.’s photograph and said that her “orange-ish red” hair and the way it was braided made her stand out. Alford saw Brit.’s photograph and said she was the person Alford had told police was hitting two of the victims with her closed fists and feet. She also remembered the orange braids Brit. wore that night.
Emerald
Alford identified Emerald’s photograph, recalling her long braid and the “I Love Halloween” shirt and gold slippers she was wearing that night. She testified that Emerald threw pumpkins at the victims. In court, however, she identified Antoinette, not Emerald, as the person depicted in the photograph.
All of the “I Love Halloween” shirts had the word “I” and below the word there was the shape of a heart with a skull and crossbones in the middle of the heart and underneath the heart was the word “Halloween.”
Sade
Alford recognized her as someone who participated in the assaults. She remembered Sade because of the red bow she had in her straight hair and the “I Love Halloween” shirt and black and white shoes she wore. In court, she said that Sade struck one of the victims with her fists.
Shanice
Alford recognized Shanice’s photograph and said she was the girl who threw newspapers at the victims as they crossed the street.
Allyson
Hyman said she was able to identify Allyson by the black Rocawear jacket and silver, large-hooped earrings she wore on the night of the incident. She said Allyson was one of the females who hit her. Alford recognized Allyson as one who struck the victims with her fists and feet. Alford also remembered the black Rocawear jacket she wore.
Antoinette
Hyman recognized Antoinette because of the gold heart-shaped earrings and the jacket bearing the “RW” insignia she wore that night. Hyman said that Antoinette used her fist to strike Hyman “in the front of the face by my left eye.” The court noted that Hyman pointed to an area just under her left eye. When Hyman looked up after being struck, she saw Antoinette standing in front of her. Hyman testified that she also kicked her. Alford acknowledged she told police at the showup that she did not recognize Antoinette. However, later when Alford saw Antoinette’s photograph, she remembered the black Rocawear jacket with red and gray insignia that she was wearing during the attack. Alford said she was not wearing the jacket at the showup. Alford testified Antoinette was involved in beating the victims.
Anthony
Alford recognized Anthony by the royal blue shorts he was wearing that night. Alford testified he was the person who said, “What did I do?,” before entering the red Mustang that fled the scene.
In court, Alford identified all of the minors and said they were involved in the assaults. She conceded that she was identifying minors from the photographs taken of them on the night of the incident. At the time of the adjudication, she had no independent recollection as to which individuals she recognized at the showup or what role each may have played in the attack. However, she was confident of the identifications she made in the field.
Alford testified that her identifications were based on the suspects’ clothing rather than their faces. She estimated she was about 20 feet away from Hyman when the verbal confrontation started. Alford drove very slowly down the street because she wanted to watch what was going on. She could not remember exactly where her car was when she saw the attack begin. She drove for less than a minute before stopping. At the point where she stopped her car in the street, she was approximately 150 to 170 feet from where the victims were accosted. She stopped there for approximately four seconds. Alford said that she observed the scene through the car’s windshield and sideview mirror and by looking back over her shoulder.
In the days following the incident, police officers showed Alford approximately 72 pictures of males. She was unable to identify anyone from this group as being involved in the assaults.
E. The Physical Evidence
Bryan Edmonds, a senior criminalist employed by the Los Angeles County Sheriff’s Department, examined stains on the front of the pant legs of a pair of blue jeans Emerald wore on the night of the assaults. He performed a presumptive test on the stains and they tested positive for blood. He was unable to say whether the blood was human or how long the stains had been on the jeans.
Various photographs depicting Hyman’s and Schneider’s injuries were presented. The parties stipulated to a medical report that detailed Hyman’s injuries and the medical treatment she required. A doctor who treated Schneider after the assault testified that she sustained contusions to her head, face, chest, and back and suffered a concussion. The effects of the concussion persisted to the time of the adjudication, and could last months, even years.
F. The Crime Scene Viewing
Pursuant to Emerald’s motion, on December 29, 2006, between the hours of 8:45 p.m. and 9:15 p.m., the trial court viewed the crime scene and walked on both sides of the street.
II. The Defense Case
On Halloween evening, Dijon Wimberly was walking on the sidewalk in the area of Bixby and Linden when he saw a group of people yelling and throwing apples at some girls. He heard people in a group of boys and girls yelling, “Fuck these White bitches” and “I don’t like White people” at three White females. He then saw a group of girls, including the three White females, fighting. He did not see any males participating in the fight. Wimberly saw Anthony, whom he knew from school, walking toward a crowd on the street. Anthony did not yell at the victims or participate in the fight.
That same evening, Lineshia Hill was one of the passengers in Kiana Alford’s car. As they were preparing to leave, Hill saw a group of between 20 and 25 teenagers on the street. She got into Alford’s vehicle. It was traveling down Linden when Alford made a U-turn. Hill surmised that “something had happened” because neighbors were gathered around the victims, who appeared to have been beaten or hurt. She said she did not notice the victims until after the assaults had occurred and did not see anyone attacking them. Hill said that she could not have seen the fight from the location where Alford stopped her car because “it was kind of a far distance” and there “wasn’t that much light to see that far up.” She said she would not have been able to see details, such as hair styles, from that distance.
Hill admitted that when Alford spoke to the police after the incident, Hill told her to “leave me out of this.” Hill did not want to get involved because it would have upset her family. Hill claimed she was not scared by the fact that Alford’s car was vandalized after she testified. However, she admitted that when the police contacted her approximately four weeks after the incident, she was angry with Alford for getting her involved.
Brit.’s, Sade’s, and Tan.’s clothing and shoes and Allyson’s shoes were examined and no bloodstains were found on them.
Anthony testified that on Halloween night he, his sisters, Emerald and Shanice, and his girlfriend, Breana, were driven in a red Mustang by his friend, Allyson, to the location of Bixby and Linden. They were accompanied by a group in a red Nissan, driven by Sade. Traveling with Sade in the Nissan were his twin sister, Antoinette, Christina, Brit., and Tan. The cars were parked on the corner of Linden and Bixby, with the Nissan in front of the Mustang.
He and his friends got out of the cars and went to the haunted house across the street. The group, which consisted of 10 people, walked to Taco Bell to get some food, but it was too crowded and they walked back to their cars. (He later testified that Allyson did not get out of the Mustang after she parked the car.) Once they arrived, he said, “Let’s leave,” and sat in the Mustang with Allyson.
Anthony sent text messages to his brother. He looked out of the car and saw three White females (the victims) walking through a crowd that had gathered on the corner of Bixby and Linden. Anthony saw the girls that had come with him walking slightly behind the victims. He did not see his friends communicate with the victims in any way. The victims passed the red Mustang Anthony was sitting in and he saw a group of boys throwing small pumpkins at them. He did not see any hit the victims. A male tripped one of the victims, and she turned and slapped Anthony’s sister, Antoinette. Sade grabbed his sister and immediately after that the boys attacked the victims. Anthony saw the victims fighting the males, and denied any female from his group struck the victims. One of the victims was fighting with a boy when another male hit her with a skateboard, causing her to fall to the ground. There were no other people surrounding her. The girl who was hit by the skateboard was the person who had slapped his sister. He claimed that girl caused the fight to break out. (At one point Anthony said Smith was the person hit by the skateboard. Later, he testified Schneider was the recipient of that blow. He identified the victims using a photograph of them posing in their costumes that had been taken prior to their arrival at Bixby and Linden.)
As the male wielding the skateboard prepared to strike the victim again, Anthony jumped out of the car, grabbed the skateboard, threw it in the street, and told the male to leave the victims alone. He did not see any females fighting with the victims. Anthony yelled that he had called the police (although he had not) and the attackers, including one who was fighting with Smith, started running. Anthony went up to Smith and told her to leave. Marice Huff approached and told Anthony that he needed to leave the area. Anthony responded by asking, “What did I do?,” and Huff again told him to leave. Anthony did not see Huff pulling female attackers off of Hyman. Anthony walked to the Mustang, where the girls were waiting inside, and opened the door. As he got in, the Nissan left the curb and drove off before the Mustang could follow it.
The two cars became separated and Anthony text-messaged his sister, Antoinette, and suggested that the groups meet at the Ralph’s parking lot. Minors met near a parking structure that was on the side of Ralph’s to discuss where to go next. Anthony did not remember stopping in the Ralph’s parking lot prior to moving to the parking structure. Sade got out of the Nissan and approached the Mustang to speak to the driver, Allyson. A police car drove up and stopped behind them. An officer got out, told them not to move, and said he needed their cooperation. Minors got out of the cars and lined themselves up against the wall, at which point the officer asked if they knew anything about an incident that had taken place at Bixby and Linden.
Anthony testified that while Allyson was communicating with the minors in the Nissan, she asked the people in the Mustang whether anyone lost a cell phone. He learned that Sade and Christina lost their cell phones that night.
He said that his sister Antoinette wore a black Rocawear jacket during the showup that she had not been wearing earlier in the evening. (Antoinette’s clothing that was booked in juvenile hall did not include a jacket.)
Stephen Foss, a track and field coach, testified he had known Allyson for approximately eight years, the period of time that she was a member of his track club. He saw her about four times a week and had observed her interact with other participants during competitions. Allyson has many friends, and had never displayed any animus toward members of different races. Foss had never observed Allyson engage in any kind of violent behavior. He said he would be shocked if Allyson associated with anyone who had gang ties. He was shown a photograph depicting Allyson and a male who appeared to be flashing a gang sign. Foss said he had never seen Allyson with that individual.
The defense also presented evidence that two people who purportedly saw the attack on the victims called 911 and reported that the perpetrators were Black males.
DISCUSSION
I. The Sufficiency of the Evidence Underlying the Assault Counts
Minors strenuously urge the evidence is insufficient to support the juvenile court’s finding that they assaulted the victims. Each points to the alleged weakness of the eyewitness identification testimony presented by the prosecution. Breana contends that even if the evidence is sufficient to show she was at the scene, there is no testimony establishing she engaged in assaultive conduct. Finally, minors argue there is insufficient evidence to find them liable as aiders and abettors for assaults in which they did not personally participate.
A. The Evidence Establishing Minors Were Participants
Minors complain that Hyman’s and Alford’s identifications were not based on their independent recollection of the events. They claim each woman merely relied on the out-of-court statement she had given to an officer during the showup. Minors assert it was impossible for Alford to identify anyone involved because she was too far from the attack to be able to see any detail. Minors cite Lineshia Hill’s testimony to support that contention.
“When reviewing a claim of insufficient evidence, we examine the entire record in the light most favorable to the prosecution to determine whether it contains reasonable, credible and solid evidence from which the jury could find the defendant guilty beyond a reasonable doubt. If the circumstances reasonably justify the verdict, we will not reverse simply because the evidence might reasonably support a contrary finding. This standard applies to cases based on circumstantial evidence. [Citation.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) “[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.)
Before addressing each minor’s argument, we make some general observations that apply to the identification issue. Minors go to great lengths to attack the identifications, and in doing so they ignore the circumstantial evidence that supports them. First, there was strong evidence that the occupants of the two vehicles stopped by police were involved in the assaults. Alford saw 10 of the attackers flee the scene in two red vehicles. Alford testified that five females got into one car and four females and one male got into the other. Huff saw one female who was attacking Hyman pick something up and get into a red car as it left the location. Each remembered a specific person either leaving from or going to one of the cars. We have set forth Huff’s observation in that regard. Alford recalled that one of the female assailants left the Mustang, took off a jacket, placed it in the car, and ran to attack one of the victims. The two vehicles were seen leaving the scene in tandem. Within minutes of the attack, two red vehicles containing minors were found stopped less than a mile from the location where the assaults occurred. The cars stopped in a grocery store parking lot and moved in tandem to a more secluded area that was not visible from the street. In accord with Alford’s recollection, one car had five female occupants and the other carried four females and one male. Second, Hyman’s cell phone was found in the Nissan. Sade told police that Brit. had brought the cell phone into the car. This is evidence that Brit. was the person who kicked Huff and picked up the item next to Hyman as she lay on the ground. Third, two of the minors, Sade and Christina, lost their cell phones that evening, suggesting they were more than bystanders at the scene.
Several of the minors suggest, without citation to legal authority, that Alford’s identifications are inherently unreliable because they were based on the clothing and jewelry worn by the suspects, not their facial features. The law is to the contrary. There is no requirement that a witness’s identification be based on a viewing of the accused’s face. Identity may be established by other specific characteristics, such as a suspect’s size, voice, features, or clothing. (People v. Lindsay (1964) 227 Cal.App.2d 482, 494.)
We turn to each of the minor’s claims.
Christina
She argues it is inconceivable Alford accurately identified her because she was too far away. She claims that Alford viewed the attack from between 300 and 600 feet away. Christina cites Hill’s testimony that she was too far to see anyone’s clothing or hairstyle. Christina asserts Hyman’s identification is suspect because her in-field identification was based only on clothing. Although Hyman testified she recognized Christina’s face, Christina implies Hyman was able to do so only after spending several days with the prosecutor viewing minors’ photographs. She also points out that Hyman was not wearing glasses at the time of the assaults and had been drinking that night. Christina also contends that Hyman’s and Alford’s identifications are unreliable because each witness’s adjudication testimony conflicted with statements she had made at the showup.
Christina is not entirely accurate when she claims Alford was too far away to make an identification. Although it is not clear how long Alford viewed the scene at various distances, she testified that she watched the fight start as she sat in her parked car. She said she was approximately 20 feet away from Hyman when the verbal taunting began. As she slowly moved down the street, she observed events through her windshield and sideview mirror and by looking back over her shoulder. Alford admitted she viewed the assaults from as far as 150 to 170 feet away; however, the record supports the inference that she was watching the events unfold from shorter distances as well.
Hill’s testimony does not render Alford’s identification impossible or inherently false. The court reasonably could have questioned Hill’s testimony for a number of reasons, not the least of which was her adamant desire not to be a witness. After Hill became aware that Alford had identified suspects at the showup, she implored Alford not to get her involved. It is telling that she did not make that request because she claimed to be unable to recognize any of the attackers. The trier of fact was not compelled to believe that belated assertion at the adjudication.
Although Christina has her suspicions as to how Hyman came to identify her by face, the fact remains that she did. She testified Christina attacked Schneider. Given Hyman’s proximity to Schneider’s assault, it is not improbable that she would have been able to identify one of the participants. She also identified Christina by a distinct article of clothing, the bright white shirt that Christina was wearing. Hyman’s identification serves to corroborate Alford’s. In addition, as noted above, Christina lost her cell phone, providing circumstantial evidence that she was involved in the altercation.
The fact that Hyman was not wearing her prescribed glasses, the allegation she may have been drinking that night, and the inconsistencies between Hyman’s and Alford’s statements were matters for the trial court to consider. In reviewing the sufficiency of the evidence, we must indulge in every reasonable inference to support the judgment. In doing so, we conclude the evidence supports the court’s finding that Christina assaulted Schneider.
Tan.
She asserts it “is simply unbelievable” that Alford’s identification of her could be accurate. Tan. questions whether a witness viewing a chaotic fight scene from a moving car could see what Alford claimed she saw. As do some of the other minors, she emphasizes one snippet of Alford’s testimony and concludes that she saw the fight for no more than three to four seconds. Although Tan. concedes Alford may have seen the orange sweatshirt she wore that night, she argues Alford’s ability to accurately state what Tan. did to Hyman “is dubious at best.” Alford admitted four or five other people involved in the fight were wearing orange and she identified Tan. solely on the basis of her orange sweatshirt. Tan. asserts further that it is reasonable to assume that many of the people on the street that Halloween night were wearing orange. Tan. acknowledges Alford testified that she was the girl who approached her earlier and asked, “What’s up?,” but she discounts this evidence by pointing out Alford failed to make that connection at the time of the showup.
Tan.’s claim that Alford viewed the fight for only three to four seconds is belied by the evidence. Alford testified she watched the fight as she drove down the street. When asked whether she made her observations of the participants as she drove, Alford answered, “Yes.” She stated that she drove very slowly down the street and it took her some period less than a minute to drive from where she had been parked to the stop sign. It was at the stop sign that she observed the fight for about four seconds. Hyman estimated that several minutes passed from the time she was hit with the thrown objects to the time she was knocked to the ground by her attackers and Alford saw the altercation from start to finish. Thus, Alford had much more time to observe the events than Tan. suggests.
Despite Tan.’s characterization, there is nothing unbelievable about Alford’s ability to identify her. As we discussed above, Alford viewed the events from different vantage points and distances. As to her identification, Alford stated specifically that the suspect who hit Hyman with her closed fist had her hood up at the time. She testified that the person who approached her and asked, “What’s up?,” had on a hooded sweater, or “hoodie.” As to the other people at the scene who were wearing orange, Alford was asked, “Of the other five or more that you saw there, how many of them had hoods that were orange in color?” She replied, “That’s the only one I saw with the hood.” Thus, Alford did not choose Tan. simply because she wore orange clothing. Alford was able to distinguish her because she was the only attacker wearing an orange garment with a hood. Alford’s ability to identify Tan. was enhanced by the fact that she saw her from a short distance before the fight broke out. While it is true that Alford’s testimony was inconsistent in places, the circumstances of her identification were examined at exhaustive length and the trier of fact accepted her identification. We are bound by that determination. (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.) There is sufficient evidence to sustain the trial court’s finding that Tan. assaulted Hyman.
Breana
She contends Hyman’s identification is unreliable. She argues Hyman, who was not asked to describe her attackers prior to the showup, identified her based on her hair style and earrings. Breana suggests these generic descriptors, especially the earrings that are a popular shape and style, exemplify the weakness of Hyman’s identification. She cites a number of factors which, she argues, tend to show Hyman’s identification is suspect: (1) the lack of light; (2) she was being attacked at the time she made her observations; (3) she was not wearing her glasses; (4) she had sustained severe injuries; (5) Breana had no blood on her clothing; and (6) no one else identified her.
Hyman’s statement at the showup suggests she saw Breana from a short distance, as she noted that Breana was on her right side. Breana is correct that Hyman based her identification on Breana’s hair, which was pulled back, and her earrings, because they were styled to look like bamboo. However, Breana ignores that when Hyman was asked whether there was anything else she noted about her, Hyman answered, “Her face. The way her face looked.” Moreover, Hyman testified Breana struck her while Hyman was facing her. In addition, Hyman saw Breana strike Schneider before she herself was hit.
As with the other minors, Breana’s attempt to highlight the weaknesses underlying Hyman’s identification is unavailing. Once the fact finder has ruled the accused is criminally liable, we may reverse only if the decision is not supported by substantial evidence. In order to find Hyman’s identification not credible, we would have to indulge every inference against the judgment, which is contrary to the rule of law. We are satisfied that Hyman’s identification is substantial evidence that Breana participated in the assault.
Breana asserts that even if we are satisfied she was at the scene, there is no evidence establishing she assaulted anyone with force likely to produce great bodily injury. As to the assault on Hyman, Hyman testified Breana struck her, but could not say where, and as to the assault on Schneider, the prosecution produced only Hyman’s testimony that Breana “hit” her. Breana argues neither blow constitutes a violation of section 245, subdivision (a)(1).
The Attorney General cites authority for the proposition that a single blow to the face of a victim may constitute force likely to produce great bodily injury (In re Nirran W. (1989) 207 Cal.App.3d 1157) and argues that whether Breana used the requisite force within the meaning of the assault statute “was a question of fact for the juvenile court to answer and [Breana] is not entitled to a redetermination of that point.” We disagree. Breana is entitled to have this court determine whether substantial evidence supports the trial court’s finding that the blow she struck was likely to produce great bodily injury. We conclude it does not.
While we recognize that one may commit an assault likely to produce great bodily injury by using fists or feet (People v. Aguilar (1997) 16 Cal.4th 1023), the problem here is there is no evidence establishing how or where Breana struck her victims. In In re Nirran, supra, 207 Cal.App.3d 1157, the minor struck his victim on the side of the face with great force and without warning, causing her to fall to the ground. The victim testified that “she felt her jaw pop out and then back in.” The appellate court found the force utilized was sufficient to sustain the finding that the minor violated section 245, subdivision (a)(1). Here, the trial court could only speculate as to the force Breana used and whether the target of her blow made it likely that Hyman or Schneider would suffer great bodily injury. A single blow to the arm, even with a fist, which is insufficient to knock a victim down is quite different than one delivered to the face. The evidence simply does not establish where Breana struck her victims and the force she utilized. Her liability as to the felony assault charges, if any, can only be established if she were an aider and abettor in the attacks, which we discuss below.
Brit.
She contends Hyman’s and Alford’s identifications are flawed because neither could identify her in court. She points out that Alford admitted she was unable to identify any of the perpetrators of the assaults after viewing them in the courtroom and stated she was identifying the minors based on the police photographs taken after the incident. Brit. claims the identifications are further tainted by the suggestive line-up procedure. We are not persuaded.
“Identification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witness’s out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 480.) Indeed, “an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification: ‘[T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. [Citations.]...’ [Citations].” (People v. Cuevas (1995) 12 Cal.4th 252, 265.)
Significantly, Alford testified she was certain of her identification in the field at the time she made it. In addition, Hyman also identified Brit. during the showup as the person who kicked her in the legs and punched her in the back of the head. Moreover, Brit. admitted she picked up Hyman’s cell phone at the scene. Huff testified that the girl who kicked him as she tried to strike Hyman stopped to pick up an item before running to one of the getaway cars. Considering all of the evidence, we are satisfied it supports the finding that Brit. participated in the assaults. We will address the effect of the field showup below.
Emerald
She repeats many of the arguments advanced by some of the other minors: (1) Alford was too far away to make a reliable identification; (2) she based her identification on clothing rather than facial features; (3) other minors wore similar clothing; and (4) Alford was unable to identify her in court. We note that Alford recognized Emerald based on two distinctive characteristics, the long braid in her hair and the gold slippers she wore. In any event, as we have discussed, the factors Emerald cites were considered by the court and it found Alford’s identification credible. The evidence supports that conclusion.
Emerald takes a similar approach when dealing with the presumptive bloodstains found on her jeans. She emphasizes all of the inferences that support her point of view, ignoring those that support the verdict. There is no question that based on the totality of the evidence, the court could reasonably find the blood in question was human and belonged to Hyman, who bled profusely after the attack. We reject Emerald’s assertion that the blood evidence does nothing more than prove she was present. The fact that she was close enough to get some of the victim’s blood on her clothing supports Alford’s statement that Emerald was part of the group who attacked the victims. Substantial evidence supports the trial court’s finding that Emerald assaulted Hyman.
Sade
Initially, she contends that “because the facts in this case brush up against the freedom-of-speech and freedom-of-association rights safeguarded” by the federal and state Constitutions (the § 422.75 allegations), we must apply the independent review standard applicable to First Amendment cases. She is incorrect. We have set forth the appropriate standard of review as it relates to the issue of identity and we apply that deferential substantial evidence standard here.
Sade alleges Alford’s identification was physically impossible or inherently false. She highlights all of the evidence she believes is favorable to her position: (1) because there were no streetlights illuminating the area of the fight, it was too dark for Alford to see; (2) the situation was chaotic; (3) Alford was too far away (more than 170 feet) to accurately identify anyone; (4) she relied on the clothing worn by the suspects to make her identification and other suspects were similarly dressed; and (5) she was unable to identify Sade in court.
As we pointed out above, the factual premises of Sade’s argument are flawed. As we have discussed, the notion that Alford made her observations from a fixed location is not supported by the record. While it is true that there were no lights directly above the area where the assaults took place, Hyman and Alford testified there were streetlights and other lighting supplied by the nearby houses to illuminate the area. The trial court noted that during the viewing of the crime scene, “there were city streetlights on the block that appeared to be functioning and in the locations testified to at trial.” Although Sade was identified by clothing, Alford recalled the distinctive red bow she wore in her straight hair and her black and white shoes.
In Sade’s case, there is also circumstantial evidence connecting her to the crimes. She lost her cell phone that evening, indicating she participated in the altercation. In addition, she was the driver of the Nissan and the manner in which the two cars left the scene and attempted to hide by parking in a darkened area not visible from the street demonstrates consciousness of guilt.
We conclude, as we have with respect to the other minors, that Alford’s identification was neither physically impossible nor inherently false.
Allyson
She asserts Hyman’s and Alford’s identifications do not constitute substantial evidence. As do the others, she cites the evidence most favorable to her position and ignores that which supports the trial court’s finding. She claims Alford’s identification is flawed due to the distance from where she made her observations and the time she had to make them. We have already discussed the elements of time and distance as they relate to Alford’s ability to observe the scene. Allyson also cites Alford’s admission that someone other than Allyson who was wearing similar clothing could have assaulted the victims. Allyson also points to Anthony’s testimony wherein he claimed she never got out of the car and the lack of blood on her clothing and shoes.
The evidence that supports the juvenile court’s findings is that both Hyman and Alford identified Allyson and recalled the jacket she wore that night. Although Antoinette also had a Rocawear jacket, it is clearly distinguishable from Allyson’s. As Alford noted, Allyson’s jacket is all black, while Antoinette’s has red and grey “RW” insignias in various locations on the jacket. Alford also recalled that Allyson had actively participated in the assaults by striking one victim with a closed fist and stomping on the others with her feet. In addition, as with Sade, Allyson’s acts of driving a car away from the scene and attempting to avoid detection demonstrate a consciousness of guilt that enhances the case against her. Substantial evidence supports the juvenile court’s determination that she participated in the assaults.
Antoinette
She contends the only evidence connecting her to the crimes is Hyman’s identification and claims that her identification is problematic. Putting aside Alford’s testimony for the moment, while we agree there were issues regarding Hyman’s identification, Antoinette has not demonstrated that it should be rejected as impossible or false. The bottom line is Hyman said that Antoinette was standing right in front of her when she struck Hyman in the face and on top of the head. Hyman also said Antoinette kicked her. Antoinette attempts to deflect this testimony by pointing out that Hyman said later that at the time she was hit, she did not know who had hit her. First, the question Hyman answered does not make it clear that she was being asked about the moment Antoinette struck her under the eye. Second, even if Hyman did not know who inflicted a particular blow at the moment she was hit, this does not change the fact that Antoinette was standing directly in front of Hyman during the time Antoinette was throwing punches and Hyman was being struck. Put simply, the cited testimony does nothing to weaken Hyman’s identification of Antoinette.
In claiming Hyman’s identification is unreliable, Antoinette makes one argument not raised by the other minors. She asserts the cross-racial nature of the identification makes it more likely Hyman is mistaken. Given the close proximity of Hyman and her attacker, we are not persuaded.
By claiming Alford did not identify her, Antoinette mischaracterizes her testimony. Although Alford acknowledged she did not recognize Antoinette at the showup, at the adjudication she said that statement was not accurate. After seeing Antoinette’s photograph, Alford recognized the jacket she was wearing. She said the person in the photograph was involved in the assaults. Antoinette claims Alford later said she did not recognize her in court as one of the attackers. That is true. However, as is pointed out by minors, Alford was unable to recognize any of them in the courtroom. Her identifications were based on her viewing of minors’ photographs. Thus, her inability to recognize Antoinette in court does not mean she failed to ever identify her.
Antoinette urges Alford’s identification is inherently false because there is no evidence she was wearing the jacket at the time of the assaults. She cites her brother’s testimony to that effect and contends the property slip at juvenile hall did not list a jacket among her personal effects. On the other hand, Hyman also testified Antoinette was wearing the jacket during the attack. While Alford’s identification is certainly weak, it does serve to bolster Hyman’s. In any event, even if we discount Alford’s testimony entirely, Hyman’s identification is sufficient to sustain the charge as to Antoinette.
Anthony
He also attacks Alford’s identification, citing the same litany of factors as the other minors and claiming it was unreliable. We have discussed and rejected those arguments. He does raise one separate claim. He points to an interview Alford had with a police officer two weeks after the incident wherein she claimed the male she saw on the street had braids, and Anthony did not have braids at the time of the showup. Alford surmised Anthony must have taken them out in the car during the ride to the Ralph’s parking lot. He contends that is not reasonable.
He ignores the other factors that caused Alford to identify him. She did not recognize him because of his hairstyle. She specifically remembered the royal blue shorts he was wearing. More importantly, she testified the male attacker was the last person to get into the Mustang before it made its getaway. He stood outside of the car and asked, “What did I do?,” before the others exhorted him to get inside. Anthony’s admission during his testimony that he made the statement Alford attributed to him corroborates her version of the events. In addition, the fact she was in a position to hear Anthony provides evidence that she was close enough to see him. Under the circumstances, the fact that Anthony was the only male detained strengthens the weight of Alford’s identification.
Finally, the trial court obviously did not believe Anthony’s testimony. His attempt to mislead the court exhibits a consciousness of guilt that supports Alford’s identification of him as a perpetrator of the assaults.
B. Evidence Supporting the Aiding and Abetting Theory
Minors were found to be aiders and abettors with respect to certain charges. In addition, we have determined that the charges against Breana may be sustained only on this theory. Although not all minors challenged the sufficiency of the evidence to support the finding that they were aiders and abettors, all joined in the arguments raised by his or her coappellants to the extent they were relevant. As such, all will be deemed to have raised the issue on appeal.
Minors argue that proving they were present in the general area of the assaults or associated with other participants is insufficient to establish they were aiders and abettors. Minors cite the following factors and contend they cannot be found liable for any assault in which they did not personally participate: (1) the victims were beaten by three separate groups; (2) there is no evidence that a nonparticipant of a particular assault shared the intent of the participants; and (3) there is no evidence a nonparticipant assisted in the commission of that assault or encouraged anyone to participate.
“[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
“A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) “Factors to be considered by the trier of fact in determining ‘whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.’” (People v. Garcia (2008) 168 Cal.App.4th 261, 273 (Garcia), quoting People v. Jones (1980) 108 Cal.App.3d 9, 15.)
Minors’ attempt to parse the incident into three separate unconnected assaults, while helpful to their cause, ignores the reality of the events that unfolded that night. Substantial evidence supports the conclusion that the victims were assaulted for a specific reason—their race. As they attempted to walk around the crowd that was gathering and following them, individuals exhibited the mood of the crowd by yelling, “Fuck White people” and “I hate White people.” Several in the crowd called the victims “White bitches.” Before the beatings occurred, the three women were pelted with small pumpkins and lemons. After Hyman and Schneider expressed displeasure at being hit by thrown objects, Schneider was attacked and beaten while Hyman and Smith were quickly subjected to the same. The questions are: Did minors intend for all the victims to be assaulted and did each assist in the assault of each of the victims regardless of whether he or she personally attacked that victim?
We find the facts of People v. Buice (1964) 230 Cal.App.2d 324 (Buice) instructive. While two Los Angeles Police Department officers were trying to subdue two African-American suspects, other African-American individuals joined the fray, leading to a massive free-for-all involving multiple officers and civilian combatants. Several were convicted of violating section 69, resisting executive officers in the performance of their duties. On appeal, the defendants claimed the information failed to give them adequate notice of the specific acts each performed in violation of the statute.
The appellate court took great pains to layout the sequence of events. Although the incident began with two officers engaging a like number of suspects, it quickly escalated when eight to ten African-Americans began to surround and beat the officers. One of the officers recalled hearing someone shout, “‘Let’s get them, Brothers,’” and “‘Let’s kill them, Brothers.’” (Buice, supra, 230 Cal.App.2d at p. 329.) As other officers arrived and tried to restore order, members of the African-American group turned their attention to those officers and the fight continued. The melee culminated with some officers chasing the suspects into a Muslim temple, where the officers were attacked while the suspects exhorted their companions to “get” and “kill” them. (Id. at p. 332.)
The court found sufficient evidence to conclude the defendants aided and abetted each other in violating section 69. Thus, the charging document did not have to allege specific conduct as to each defendant. It concluded: “The People’s case clearly showed that all the defendants herein involved participated in a continuous transaction of insurrection against the authority of the police, preventing the police officers from performing their duties. The evidence also shows that assistance was rendered by each defendant on behalf of the others to aid and abet in the violence against police officers in the performance of their duties. Under these circumstances the evidence paints a clear picture of common guilt. There is no question that the evidence sufficiently shows that these defendants did aid and abet one another. Each defendant was therefore a principal in each offense against each police officer named in count I.” (Buice, supra, 230 Cal.App.2d at p. 340.)
We conclude the same here. From the beginning of the incident, the victims, as a group, were targeted because they were Caucasian. That was obvious to virtually all of the witnesses who observed the events that evening, including Kiana Alford, Marice Huff, and the defense witness, Dijon Wimberly. Anthony conceded in his testimony that minors (with the exception of Allyson and himself) were in the crowd that the victims attempted to walk past. The epithets and the objects were hurled at the group of women, not at one of them. When the violence erupted, the victims were attacked simultaneously by the crowd, which had, by words and deeds, loudly communicated its intent to harm the women because of their race. Given how the scenario unfolded, it was reasonable for the trial court to conclude that each minor who chose to participate in the mob violence shared that intent and common purpose.
We reject Emerald’s claim that because she struck only Hyman with a pumpkin she cannot be deemed an aider and abettor in the assaults of Schneider and Smith. First, Alford told police that Emerald threw pumpkins at all three victims. Thus, Emerald intended to and did assault Schneider and Smith even though she did not hit them. Second, the racial taunting of the victims occurred prior to the items being thrown at them. This is substantial evidence that Emerald shared the intent of the crowd to do harm to the victims and there is little question that her acts encouraged and emboldened the others. Third, there is evidence that Emerald’s acts led to the attacks of the victims. The beatings ensued when Schneider turned to protest being struck by thrown objects.
It was equally reasonable to find that a minor who participated in an attack on one victim lent assistance to the minors who were assaulting the other victims. If nothing else, attacking one victim prevented her from assisting her companions. This was demonstrated by the attack on Hyman, which began when she attempted to run to Schneider’s aid as she was surrounded and struck by fists, feet, and a skateboard. As in Buice, each minor’s participation served to assist the other attackers in completing the goal that evening—to humiliate and beat the victims.
The trial court’s finding that minors aided and abetted one another in the three assaults is also supported when we consider the factors outlined in Garcia, supra, 168 Cal.App.4th 261: (1) they were present at the scene, after arriving together; (2) they failed to prevent the commission of the crime; (3) some of the minors helped escalate the tensions by cursing at the victims and throwing objects at them, which enticed their companions to engage in the assaults which followed; and (4) they fled the scene together and followed one another in an attempt to avoid detection.
The evidence is sufficient to support the trial court’s finding that each minor aided and abetted the commission of the assaults in which he or she did not personally participate. For the same reasons, we conclude Brit. is liable for the three assaults.
II. The Special Allegations
A. The Hate Crime Allegation
Minors, with the exception of Emerald, were found to have committed hate crimes. Each contends the evidence is insufficient to support those findings. Their principal arguments are: (1) race was not a motivating factor in the attack; and (2) there is no direct evidence any individual minor was motivated to act because of the victims’ race. We disagree.
Section 422.55, subdivision (a) defines a hate crime as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim.” As relevant here, the characteristic at issue is the victims’ “race or ethnicity.” (§ 422.55, subd. (a)(4).)
Sade and Antoinette contend we must independently review the sufficiency of the evidence to support the enhancement “because the facts in this case brush up against the freedom-of-speech and freedom-of-association rights safeguarded by the First Amendment....” The contention lacks merit. The hate statutes punish bias-motivated conduct, not expression. Thus, the First Amendment is not implicated. (See People v. Lindberg (2008) 45 Cal.4th 1, 37 [the hate-murder special circumstance in § 190.2]; In re M.S. (1995) 10 Cal.4th 698, 725 [the hate crime statute in § 422.7].) Therefore, we utilize the traditional standard of review. We determine whether substantial evidence supports the trial court’s finding that the prosecution proved all of the elements of the enhancement, reviewing the record in the light most favorable to the judgment. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
Minors assert that race was not a motivating factor for the assaults. Some suggest the words that were uttered have no racial connotation, such as “bitch” and “White bitch.” Others claim race did not play a role in the attack because other African-Americans, including Huff, had racial epithets directed at them. Sade urges that Hyman caused the violence by gesturing and throwing items at the crowd, which escalated a tense situation.
Minors misconstrue the requirements of the hate crime statute. Our Supreme Court addressed similar hate crimes statutes, sections 422.6 and 422.7, in In re M.S., supra,10 Cal.4th 698. The court observed “[t]he statutes require proof, inter alia, that the offense was committed because of the perpetrator’s racial, religious or other specified bias,” and concluded that, as used in the statutes and “as a matter of common usage, ‘because of’ means the conduct must have been caused by the prohibited bias.” (Id. at p. 719.) However, it made it clear that “nothing in the text of the statute suggests the Legislature intended to limit punishment to offenses committed exclusively or even mainly because of the prohibited bias. A number of causes may operate concurrently to produce a given result, none necessarily predominating over the others.” (Ibid.) The court concluded the “because of” language meant “the bias motivation must be a cause in fact of the offense, whether or not other causes also exist. [Citation.] When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime.” (Ibid.)
Initially, minors argue there is no direct evidence showing their alleged racial animus toward the victims and the trial court’s finding that the assaults were hate crimes must be reversed. Not so. “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) A review of the facts and circumstances of the assaults which took place in Bixby Knolls reveals substantial evidence that the crimes were caused by minors’ bias against the victims.
There is no evidence minors knew the victims. Nor is there evidence that minors had any contact with the victims prior to the attacks. As such, there is no reason to believe minors had a personal motive for attacking the women.
There is no question the victims were singled out because of their race. While it is true that some of the epithets yelled that night, such as “bitch,” do not connote any racial animus, the insertion of the word “White” before the insults clearly does. The testimony from the victims and witnesses, both prosecution and defense, establishes the victims were singled out because of the color of their skin. In particular, Allyson was identified as one who called the victims, “White bitches.” Three others, Christina, Emerald, and Shanice, threw items at the victims while the racial insults were shouted. The three Caucasian women, and no others, were subjected to a savage beating. Although minors argue that race could not have been a motivating factor because other African-Americans (specifically Huff) had racial epithets hurled at them, that fact does not mean race was not “a substantial factor in bringing about the crime.” (In re M.S., supra, 10 Cal.4th at p. 719.) To suggest racial bias was not a substantial factor that led to the attacks is to turn a blind eye toward reality.
B. The Great Bodily Injury Allegation
Christina and Breana attack the trial court’s finding that each inflicted great bodily injury upon Schneider. We address Christina’s claims first.
She contends the prosecution used the “group beating” theory defined in CALJIC No. 17.20 to establish that she was responsible for inflicting great bodily injury. Pointing to the language of that instruction, she argues a prerequisite to finding liability under the “group beating” theory is that it must not be possible to determine which assailant among the group inflicted the injury. She asserts the prosecution proved the males who attacked Schneider, in particular one who struck her with a skateboard, caused her injuries. We disagree.
Doctor Bozeman, the emergency room physician who treated Schneider, testified that she suffered multiple contusions of the head, face, and chest, bruising to parts of her right eye, tenderness to the rib cage, and a concussion accompanied by a loss of consciousness. As a result, she continued to suffer persistent headaches, dizziness, blurred vision, fainting spells, and depression. According to Bozeman, such symptoms of a concussion could last “anywhere from a few hours to days, weeks or even months; in some cases, years.”
At no time did Doctor Bozeman state or remotely suggest that any of Schneider’s injuries were caused by a specific blow. For example, in describing the injury to her right eye, he said, “I don’t see, you know, from my notes what specific blow might have produced the injury to the eye, whether it was a foot, a fist, or a skateboard.” Christina fails to direct our attention to any part of the doctor’s testimony wherein he ascribed any specific cause for a particular injury. As such, there is no evidence that it was possible to determine whether an individual was responsible for inflicting Schneider’s injuries.
As a corollary to the above argument, Christina suggests the prosecutor did not attempt to show who was responsible for causing Schneider’s injuries because she did not call Schneider as a witness. As a result, Christina argues the People should be barred from using the “group beating” theory to prove she inflicted great bodily injury. The fallacy of this claim is that even assuming Schneider, who was simultaneously beaten by eight to ten people and rendered immobile, was in a position to determine which attacker caused her injuries, nothing prohibited minors from calling her if they believed she had helpful testimony in this regard. We conclude the doctor’s testimony was sufficient to establish that it was not possible to ascertain which assailant was responsible for inflicting the significant injuries Schneider suffered.
Next, Christina argues there is insufficient evidence establishing that the force she used was sufficient to cause or contribute to the great bodily injury suffered by Schneider. She claims that “[a]t the time of the incident, [she] was a 100 pound, 14 year-old girl,” whose role in the attack was plainly “‘minor, trivial or insubstantial.’” We are not persuaded. Alford testified she saw Christina strike the victims with her fists or feet. Specifically, Hyman told the police at the showup that Christina was the “one that beat my friend [Schneider].” In court, she said Christina was one of the people who attacked Schneider. We keep in mind that eight to ten people surrounded Schneider while she was repeatedly hit, stomped, and kicked. Hyman’s testimony made it clear that Christina was actively participating in that attack. The trial court could reasonably conclude that the accumulation of the multiple blows Schneider received caused her eye injury and concussion. As we must indulge every reasonable inference to support the judgment, substantial evidence supports the juvenile court’s true finding on the personal infliction of great bodily injury enhancement with respect to Christina.
Finally, Christina asserts that the “group beating” theory discussed in People v. Modiri (2006) 39 Cal.4th 481 (Modiri) violates the due process clause of the United States Constitution because it does not require the People to prove she personally inflicted great bodily injury. The Modiri court determined that CALJIC No. 17.20, the great bodily injury instruction, appropriately informed the jury that a defendant’s use of force applied in combination with other assailants satisfied the personal infliction of great bodily injury requirement in section 12022.7. We are bound by the court’s holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Assuming the juvenile court utilized the same guideline to render its finding with respect to the section 12022.7 allegations in this case, and Christina does not contend otherwise, we discern no error.
The true finding as to Breana, however, is a different matter. Modiri recognized that CALJIC No. 17.20 correctly instructed the jury “that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. Both group beating theories exclude persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves.” (Modiri, supra, 39 Cal.4th at p. 494.) The court went on to note that “[i]t bears emphasis that CALJIC No. 17.20 contemplates acts that contribute substantially to the victim’s injured state.” (Ibid.)
As we have discussed, the only evidence regarding the physical force Breana personally used in the attack on Schneider came from Hyman. The most Hyman could say was that Breana “hit” Schneider. Hyman was never asked how many times Breana struck Schneider, in what manner she hit her (i.e. open hand or fist), or where the blow landed on Schneider’s body. The evidence does not suggest, in contrast with Christina, that Breana played any further role in the attack. As a result, any finding concerning Breana’s role in the attack is based on speculation. As we have no way of determining whether Breana’s use of force substantially contributed to Schneider’s injuries, the true finding as to the section 12022.7 allegation must be reversed.
III. The Field Showup
Minors contend that the trial court erred when it allowed the witnesses to identify them in court. They argue the in-court identifications were the product of an unduly suggestive field showup and their admission constituted a denial of their right to due process. Their claim has two components: (1) the witnesses were told by the police that the suspects had been apprehended; and (2) the manner in which the showup was conducted suggested to the witnesses that they should identify the subjects they viewed.
Although two of the minors did not specifically address this issue in their briefs, they asked to join in the relevant arguments of their coappellants.
Although it is not mentioned by any of the parties, it appears that minors did not argue in the trial court that the identification process, as it related to Hyman and Alford, was unduly suggestive. To be sure, minors argued the witnesses’ identifications were inherently suspect, but our review of the voluminous record does not indicate that minors specifically objected to the manner in which the showup was conducted. Indeed, no one suggests in his or her brief that the trial court erred in finding the showup was not flawed. As such, we could easily reject minors’ claim as forfeited. (See People v. Medina (1995) 11 Cal.4th 694, 753 [defendant’s failure to assert a timely objection to the identification procedure that was allegedly unduly suggestive forfeits the contention].) Nonetheless, to forestall the inevitable claim of ineffective assistance of counsel, we address the claim on the merits. (See People v. Mattson (1990) 50 Cal.3d 826, 854, superseded by statute on another ground in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)
Counsel for Emerald filed a motion to exclude the identifications of Marice Huff. However, the prosecution did not present any evidence that Huff identified any of the minors charged.
“Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) Minors have “the burden of showing that the identification procedure was unduly suggestive and unfair ‘as a demonstrable reality, not just speculation.’ [Citation.]” (People v. Cook (2007) 40 Cal.4th 1334, 1355.) If we determine that the showup was not impermissibly suggestive, the inquiry into minors’ due process claim ends. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)
Minors focus much of their argument on the claim that the witnesses’ field identifications were tainted by the comments of officers prior to the showup. For example, Alford was told “we got the car,” and “we caught the individuals who did this.” Hyman testified the officers “explained that they had caught some people that they thought were involved and wanted us to identify them.”
Initially, we note that the mere fact the officers suggested the subjects the witnesses were about to view were in custody or possibly involved does not inexorably lead to the conclusion that the showup was tainted. (See People v. Contreras (1993) 17 Cal.App.4th 813, 820 [photo showup was not tainted by officer’s suggestion that suspect’s photo was among those being viewed by the witness]; People v. Meneley (1972) 29 Cal.App.3d 41, 57, overruled on another ground in People v. Bolton (1979) 23 Cal.3d 208, 213-214 [lineup identification upheld where police told witness the suspect would be in the lineup]; People v. Ballard (1969) 1 Cal.App.3d 602, 605 [lineup identification upheld where witness was told that police had two suspects who fit the description the witness had given].)
With regard to the showup procedure in this case, as we have discussed, Hyman and Alford were read an admonition prior to viewing the subjects. (See fn. 7, ante.) In combination with the admonition, we are satisfied that the officers’ statements did not result in an unnecessarily suggestive identification process.
We start with Alford’s identification. She acknowledged the officers’ words led her to expect that she would see individuals who were involved in the assaults. However, after she was read the admonition, she realized it was just as important to free innocent persons as it was to identify the participants in the crimes. She was asked by the prosecutor with reference to the admonition, “If it is not the right person, don’t pick that person. You understood that?,” and Alford answered, “Yes.” Thus, she understood that even though she had been told the suspects were caught, it was nonetheless her responsibility to identify only those individuals she recognized. Further evidence that she was not unduly swayed by her expectations is the fact that she failed to identify Breana or Antoinette at the showup.
Turning to Hyman’s participation in the showup, after receiving the admonition, she also understood her duty was to identify only those people she recognized. She testified the admonition “instructed us that you should not identify anyone unless you were certain and that there could be people there that were in no way involved or guilty just because they were there.” Despite what minors call undue suggestion, she did not identify Tan., Sade, Shanice, and Anthony.
In the final analysis, the officers’ comments stated what the witnesses most likely suspected without prompting—they might see individuals who were involved in the attacks in Bixby Knolls. “Anyone asked to view a lineup would naturally assume the police had a suspect.” (People v. Carpenter (1997) 15 Cal.4th 312, 368, superseded by statute on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1108.) Ample evidence supports the conclusion that the statements did not lead the witnesses to identify a minor solely because he or she was a subject in the showup.
Minors also contend the manner in which the showup was conducted, in particular that it constituted a single person showup, rendered the process impermissible. We note that the use of a single person showup “‘is not inherently unfair.’” (Ochoa, supra, 19 Cal.4th at p. 413, quoting People v. Floyd (1970) 1 Cal.3d 694, 714.) 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.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.) In this regard, the showup took place approximately 20 minutes after the suspects fled the scene. The use of a single person showup is unfair where the police improperly suggest to the witness that the individual in the showup is the person suspected of the crime. (Ochoa, supra, at p. 413.) Minors fail to point to anything about the manner in which the showup was conducted that suggested to the witnesses that any particular suspect was involved.
Minors argue that the suggestive nature of the showup caused the identifications to be unreliable. They point to factors such as the lack of lighting in the street where the assaults took place, the limited opportunity for the witnesses to view those responsible for the crimes, and the chaotic scene on Bixby and Linden. None of these have any bearing on whether the showup procedure was inherently unfair.
We conclude minors have failed to demonstrate the showup was unduly suggestive. As we have found that the manner in which the identifications were obtained was not flawed, the due process inquiry need go no further. (Ochoa, supra, 19 Cal.4th at p. 412.)
IV. The Failure to Appoint an Eyewitness Identification Expert
The adjudication began on November 28, 2006. On December 28, after the prosecution had presented virtually its entire case, Emerald’s counsel filed a motion for the appointment of an eyewitness identification expert. All other counsel joined. That same day, counsel were informed the court would not sign the order for the appointment. The court gave no reason for the denial. Minors assert the trial court’s failure to appoint an eyewitness identification expert constituted an abuse of discretion. They argue they were denied their right to present a defense, due process, and equal protection. Their claim misses the mark.
There is no question that the right to effective counsel includes access to ancillary services necessary to prepare a defense. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320 (Corenevsky). “A right to ancillary defense services will thus arise if [minors had] demonstrated the need for such services by reference to ‘“the general lines of inquiry [they] wish[] to pursue, being as specific as possible.”’ [Citations.]” (Id. at p. 320.) They failed to do so.
Emerald’s boilerplate motion presented to the trial court consisted of one paragraph. “Defendant hereby moves, pursuant to sections 730 and 952 of the Evidence Code, that Dr. Steven E. Clark, PhD be appointed as expert witness in the above-entitled case. Said expert is to make available all findings and reports to the defense only, to consult confidentially with defense counsel, and to testify, if necessary, at trial or other pertinent proceedings in this case.” Emerald’s counsel filed nearly identical motions seeking the appointment of other experts, changing only the names of the experts she wished to have appointed. The motion at issue contained counsel’s declaration, which included the expert’s credentials and rate of pay, and the expert’s curriculum vitae.
Glaringly absent from the motion is any showing of need. Counsel neglected to inform the court of the reasons why an expert was needed at that late stage of the proceedings and there was no mention of the “‘“general lines of inquiry [she] wishe[d] to pursue.”’” (Corenevsky, supra, 36 Cal.3d at p. 320.) An expert’s testimony is limited to an opinion “[r]elated to a subject that is sufficiently beyond common experience” such that it would assist the trier of fact. (Evid. Code, § 801, subd. (a).) The thrust of the argument below and on appeal is that the witnesses could not have made accurate identifications because the scene of the assaults was too dark, the witnesses were too far away, and the time they had to make their observations was too limited. As the court observed in People v. McDonald (1984) 37 Cal.3d 351, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914, the seminal case that explained the need for eyewitness identification experts in certain circumstances, “It is doubtless true that from personal experience and intuition all jurors know that an eyewitness identification can be mistaken, and also know the more obvious factors that can affect its accuracy, such as lighting, distance, and duration. [Fn. omitted.]” (McDonald, supra, at p. 367.)
In their briefs on appeal, minors belatedly point to factors that they claim necessitated the appointment of an expert. It is too little too late. “[O]n appeal the trial court’s order is presumed correct. Error must be affirmatively shown. [Citation.] Error is not shown on appeal by urging reasons for the [appointment of an expert] not presented to the court.” (People v. Beardslee (1991) 53 Cal.3d 68, 100.) Because minors failed to demonstrate a need for the requested eyewitness identification expert, we conclude the court did not err in refusing to appoint one.
Antoinette contends that if we find the request for an expert was defective for failing to demonstrate good cause, she was denied effective assistance of counsel. She urges there was no tactical reason for her attorney to have failed to offer a timely and adequate motion for the appointment of an eyewitness identification expert.
A claim that counsel’s assistance was so defective that reversal of a conviction is mandated requires: (1) a showing that counsel’s performance was deficient; and (2) that counsel’s performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) In order to establish prejudice, “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. 694.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Id. at p. 697.) And so we do.
As discussed above, the heart of minors’ misidentification argument revolves around factors that are well within the realm of common knowledge. We recognize that minors mention other variables that may possibly affect one’s ability to make an accurate identification, such as stress and race. Nonetheless, it cannot seriously be disputed that the court’s implied finding that the witnesses had enough light to see the suspects, were not too far away to accurately describe what they saw, and had sufficient time to observe the scene demonstrates that an expert’s explanation of less significant factors (assuming the experienced trial judge did not already understand the concepts) would not have led to a different result. Antoinette’s ineffective assistance claim fails.
V. The Shackling of Minors
Christina, Breana, and Allyson contend the trial court erred by allowing them to be shackled during the adjudication. The Attorney General argues they failed to preserve the issue for appeal. We agree with the Attorney General.
On the first day of the adjudication, the court began by discussing logistical matters with the parties, such as determining the schedule for future hearings. Emerald’s attorney mentioned that she had several motions pending. The first was for a change of venue, the second sought severance, and the third requested that minors not be shackled during the adjudication. The court responded, “Well, okay. I mean I can take that up. With ten, you know, minors in the courtroom, a full courtroom as you can see, it could be an issue, but I appreciate that and I will be glad to address it. It’s a lot of people.” After counsel agreed with the court’s assessment, it stated, “A lot of people packed in here, but let me deal with the motions, then, at this juncture.”
The parties handled the venue and severance motions. At that point, counsel for some of the minors joined in the request that minors not be shackled. A deputy sheriff indicated that safety was a concern because it was not clear how many deputies were going to be present during the adjudication. Emerald’s attorney suggested that minors be cuffed individually and opined they did not need to be shackled. Sade’s counsel noted that in his experience a defendant is often handcuffed to a chair, which he said, “would be less burdensome and allow me access to my client.”
The court concluded the discussion by saying, “Obviously, communication is an enormous issue and it has to be addressed, certainly during the testimony that has to be an issue. I can see that those of you in the jury box at least have, you know, accessibility and those of you at the counsel table ought to and that may include more chairs. I don’t know, Deputy. We can move the bench right now behind them so they have access to their clients. We can do that. It’s an ongoing issue, I understand that, but in an attempt to at least start moving along — well, how’s that? — Then we can address the issue of chairs and handcuffing to the chairs, all these other security issues. But we need to get started with something of a substantive nature. Yes. Thank you. If the bench is up there, they can at least communicate.”
The matter was never discussed again.
Christina argues the matter was preserved by the single objection lodged on the record. She is incorrect. In People v. Ramirez (2006) 39 Cal.4th 398 (Ramirez), the defendant claimed on appeal that his restraint by leg chains during the trial deprived him of his right to due process and a fair trial. During jury selection, the court was informed that the defendant was unhappy with wearing a leg brace. Counsel and the court discussed whether the defendant should wear leg chains, which the defendant preferred, or a brace. At one point during the proceedings, counsel reported that the defendant was of the belief that he should wear neither. The court responded, “‘One or the other at this point, and if you want a hearing as to whether or not we ought to have any restraints at all, I will be happy to give that to you on a Friday sometime and we’ll thrash it out.’” (Id. at p. 449.) The defendant did not request a further hearing concerning whether restraints of any type were justified.
The Supreme Court concluded that “[a]lthough we could construe as an objection to the use of physical restraints defense counsel’s passing comment that ‘I think my client’s position is that he should have neither’ a leg brace or leg chains, defendant failed to preserve this issue for review because, despite the court’s invitation to resolve the issue at a later hearing, he did not request such a hearing or otherwise press for a ruling on the necessity for physical restraints. Defendant’s failure to press the court for a ruling ‘deprive[d] the trial court of the opportunity to correct potential error.’ [Citation.]” (Ramirez, supra, 39 Cal.4th at p. 450.)
As in Ramirez, the juvenile court announced its willingness to “address” the security issues, but the parties failed to request a further hearing or press for a ruling. The issue was not preserved for appeal.
In any event, minors’ shackling was not prejudicial. Christina claims the fact that she was shackled caused Kiana Alford to change her testimony. It is difficult to comprehend the argument. Christina notes that on the first day of the adjudication, Alford testified that Christina threw lemons at the victims. She later changed her testimony and claimed that Christina also struck one of the victims. The record is clear that Christina was shackled during the entire time Alford testified. Thus, we fail to understand how Alford altered her testimony because of the presence of the shackles. Moreover, Christina’s claim of cause and effect is no more than rank speculation.
Next, Christina contends that her shackling caused Marice Huff to become reluctant to testify. We are uncertain why she makes that allegation, as she notes in her brief that “the prosecutor informed the court that Mr. Huff no longer wanted to testify and that his participation in the adjudication had adversely affected his marriage due to the publicity in the case and reports of retaliation.” Her theory that his fear was exacerbated by the fact minors were shackled is without any foundation. In any event, she fails to explain how she was prejudiced by Huff’s decision not to testify further.
Christina claims her shackling prevented communication with her attorney. The record fails to support that conclusion. Neither Christina nor her attorney complained at any time that she was being denied access to her attorney. She cites to the general discussion at the beginning of the hearing where the court acknowledged communication was an issue, but this does not reflect that she, personally, had a problem in that regard. For the same reason, another attorney’s description as to how he communicated with his client does not establish that Christina experienced similar difficulties. In her reply brief, Christina cites to other portions of the record in an attempt to prove her point. She fails. At one point in the proceedings, counsel remarked that he had a hard time getting the court’s attention due to the number of people in the courtroom, at another, counsel remarked that his client needed to be uncuffed prior to testifying, and during the prosecutor’s argument, another attorney said that he could not see an exhibit. None of these examples involved Christina’s attorney. Nor do they have anything to do with an alleged inability of client and attorney to communicate.
VI. Alleged Prosecutorial Misconduct
Brit., Breana, and Emerald accuse the prosecutor of misconduct that warrants reversal. Brit. has five separate complaints, alleging the prosecutor was guilty of: (1) disparaging defense counsel; (2) coaching prosecution witnesses; (3) providing late discovery and calling witnesses out of order; (4) making unfounded allegations against her and her family; and (5) engaging in witness intimidation. Breana asserts similar claims, arguing that the prosecutor, by her intemperate remarks, “ratcheted up the level of tension in the courtroom and contributed to the atmosphere that hampered appellant in the presentation of her defense.” Emerald contends the prosecutor was guilty of misconduct during her response in opposition to Emerald’s dismissal motion and closing argument. We set forth the particulars of Brit.’s and Breana’s contentions.
Their example of disparagement of counsel is as follows. At the beginning of the adjudication, the prosecutor asked the court to order all counsel to refer to Kiana Alford as Jane Doe. The prosecutor believed that if Alford’s identity became known, she would be a target for reprisals. The court initially agreed, and Alford testified the first day as Jane Doe. Later, after defense counsel objected on the ground that her name would be relevant for purposes of cross-examination, the court reversed its ruling and Alford stated her name for the record. After Alford’s name was published in the Los Angeles Times, her vehicle was severely damaged by vandals. The prosecutor accused Sade’s and Emerald’s attorneys of being disingenuous when they assured the court that Alford’s name would be a necessary component of cross-examination and then failed to ask a single question on the subject. She then stated that Sade’s counsel should have to pay for the damage done to Alford’s car. Emerald’s attorney objected to the prosecutor “disparaging our reputations on the record. I object to her looking at me, pointing at me and saying I had something to do with this witness’[s] car — with anything happening at all or endangering the life of a witness.”
While we agree that some of the prosecutor’s remarks were intemperate and disparaged counsel, reversal is not warranted. A prosecutor’s conduct violates the federal Constitution when it constitutes an egregious pattern of conduct that renders the trial fundamentally unfair. Under state law, a prosecutor is guilty of misconduct if he or she uses deceptive or reprehensible methods in an attempt to persuade the fact finder. (People v. Hill (1998) 17 Cal.4th 800, 819.) This isolated incident that occurred during the course of a month-long hearing meets neither test.
Breana’s further suggestion that the prosecutor was guilty of misconduct by accusing counsel of moving their clients in an attempt to confuse Alford is forfeited for failure to object below on the specific grounds alleged on appeal. (See People v. Samuels (2005) 36 Cal.4th 96, 128-129.) Breana also alleges the court sustained six objections to the prosecutor’s questions during her cross-examination of Anthony. She fails to explain how this constituted misconduct. “[A]n appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority. [Citations.] Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate.” (Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633.)
Brit. claims the prosecutor coached the prosecution witnesses. Her complaint is unsupported by the record. She bases her assertion on the fact that the prosecutor showed Alford photographs of minors while they were in the courtroom and Alford testified that she was only able to identify minors from the photographs. She does not explain how this constituted impermissible coaching. The contention is forfeited.
Brit. urges the prosecutor was guilty of providing late discovery. Again, her characterization is belied by the record. Minors insisted on proceeding with the adjudication without delay. That was their prerogative. However, as a result, reports that were generated during the ongoing investigation were given to counsel during the hearing. To be certain, during the adjudication defense counsel complained that they had received late discovery, but Brit. fails to point to a single instance where the information was being improperly withheld from the defense and minors were prejudiced as a result. With one exception, her citations to the record where she claims the court ignored her objections have nothing to do with an alleged discovery violation. As to the one objection lodged with respect to late discovery, the prosecutor did not present the evidence at issue—Huff’s identifications of minors. Thus, the alleged violation did not result in prejudice to minors.
Brit. and Breana’s claim that the prosecutor engaged in misconduct by calling witnesses out of order is equally unavailing. Brit. cites to two instances in the record. In the first, no one lodged an objection with reference to the order in which the witnesses were called. In the second, one of the 10 defense attorneys complained because the prosecutor wanted to interrupt cross-examination of one witness in order to call an officer who was going on vacation. No one suggested the prosecutor acted improperly. Indeed, one of the attorneys acknowledged he had learned of the prosecutor’s plan on the previous afternoon and stated, “I didn’t feel it necessary to notify other members of the defense.” In other words, the decision to call a witness out of order was an example of the vagaries of trial—not willful misconduct.
Brit. urges the prosecutor made unfounded gang allegations against her and her family during the disposition hearing. She argues that the probation report stated Brit. had no gang ties, yet the prosecutor claimed that Brit. and her seven-year-old brother were flashing gang signs on Brit.’s My Space page. We need only cite the record to dispose of the misconduct claim.
The Prosecutor: “Now, in looking at her My Space page, she has a picture of herself. We have had the gang officers, obviously, look at this and they explained to us that she is flashing the Baby Insane Crips Gang Sign.”
Brit.’s counsel: “Again, I am going to object. There is no evidence before the court. The signal that I see is a ‘thumbs-up’ signal, which, you know, if the gang officer wants to interpret it that way, that’s fine, but I interpret it in a totally different way.”
First, the prosecutor was merely informing the court what the gang expert had communicated to her with regard to the alleged gang sign. Second, the disagreement as to the meaning of the hand sign was just that—a disagreement. Brit.’s attempt to characterize the incident as misconduct falls short.
Brit.’s one example of witness intimidation occurred during the prosecutor’s cross-examination of Lineshia Hill. At one point, Emerald’s attorney objected and claimed the prosecutor was “yelling at the witness for some reason.” The court overruled the objection. After the next question, the attorney repeated her claim that the prosecutor was yelling at Ms. Hill. The court replied, “Well, she is raising her voice. I don’t believe she is yelling. I don’t perceive it that way.” There was no further discussion of the matter. The claim has been forfeited for failure to raise a specific objection below. In any event, Brit.’s assertion of misconduct is not supported by the record.
Emerald contends the prosecutor was guilty of committing misconduct during her response to Emerald’s dismissal motion and closing argument. Her claim is without merit. According to Emerald, the prosecutor engaged in a reprehensible attempt to persuade the court when she argued that Hyman’s blood was on Emerald’s jeans. Emerald complains the prosecutor’s argument is not supported by the evidence, as the analyst was unable to ascertain whether the blood on her jeans was of human origin or how long the stain was present. While Emerald is correct when she concludes this evidence is consistent with her view that the blood on her jeans did not belong to Hyman, she is incorrect when she asserts the prosecution was barred from arguing to the contrary. A prosecutor has a right to offer fair comment on the evidence, including reasonable inferences and deductions that may be drawn from it. (People v. Hill, supra, 17 Cal.4th at p. 819.) Even if we assume that Emerald’s interpretation of the circumstantial evidence is more reasonable than the prosecutor’s, we cannot say the prosecutor’s opposing claim constitutes misconduct.
VII. Christina’s Claim That She Was Denied Counsel of Her Choice
Christina contends the trial court erred when it denied her request to substitute in private counsel. The Attorney General argues the record does not establish the court refused her request. He is correct.
On November 22, 2006, the matter was called for pretrial. The prosecution had filed an amended petition. Christina’s appointed counsel, Jack Fuller, was present and informed the court that he believed he was going to be “substituted out.” Attorney Phillip Osula stated, “We are subbing in on this case. I’m standing in for Ron White, the attorney in this case, who is engaged in Compton at the moment.” This colloquy followed.
“The Court: Is he going to be ready to proceed?
“Mr. Osula: We just received discovery today. So as far as the trial date, it is not realistic for us to be able to proceed at that time.
“The Court: I want to have counsel of her choosing but the adjudication is currently calendared for the 27th. It is probably going to trail until the 28th, but there has been no motion to continue.
“Mr. Osula: There will be one because we just took over the case from Mr. Fuller today. So this is our first time appearing on this case.
“The Court: Well, I understand that, but it’s currently set for adjudication and it’s a multiple-minor matter.
“Mr. Osula: We will be filing a 1050 most likely.
“The Court: Okay. Well, you know, counsel — is previous counsel ready to proceed or not?”
Mr. Fuller recommended that the court permit the substitution, but said that he would be ready to proceed on the date set for the adjudication if private counsel was not available. Mr. Osula said that he would have to discuss with Mr. White whether he could be ready. The court noted that Mr. White was engaged and it needed to ascertain his status.
Mr. Osula responded, “What I’m trying to say is that Mr. White may be ready, but based upon the fact that we just took over the case today, it may happen that he may not be ready.” The prosecutor objected to any delay and the discussion continued.
“The Court: If he cannot be ready to substitute in, Mr. Fuller said he will continue on. I should put the issue of substitution over then.
“Mr. Osula: It could well be that he would be ready.
“The Court: But he’s not even here to say ready or not ready.
“Mr. Osula: He will be on here on Tuesday to make that clear.
“The Court: After-court visit, phone call. To continue the issue of substitution to Tuesday.
“Mr. Osula: We are subbing in. We are going to take over the case one way or another.
“The Court: See you on Tuesday.
“Mr. Osula: We are subbing in?
“Mr. Fuller: I’m relieved?
“The Court: No, you are not relieved because we don’t know. Come in on Tuesday and I can address it.” (Italics added.)
The record reflects no further discussion of the matter. On the first day of the adjudication, Tuesday, November 28, Mr. Fuller announced ready on behalf of Christina. The record does not reflect that either Mr. Osula or Mr. White appeared after November 22 or filed a motion to continue the November 28 adjudication.
Christina asserts she was entitled to a short continuance in order for new counsel to become acquainted with the facts of the case. Although Mr. Osula told the court that a request to continue the hearing would be filed, no such motion was presented. It is also clear the court did not deny Christina’s request to substitute counsel. As the court pointed out, the attorney who was going to handle the adjudication was not present. Under the circumstances, it acted reasonably by continuing the question of substitution until such time as new counsel was available to inform the court when he could be ready to handle the adjudication. The court was not required to rule on the substitution request in a vacuum. In the end, the juvenile court did not rule on Christina’s request to substitute counsel, hence, there is nothing for this court to review.
At oral argument, Christina’s counsel argued the court erred by not immediately granting a continuance. She cited no authority for the proposition that a court may not defer ruling in this context, and we are unaware of any.
VIII. The Admission of Brit.’s Statement
Brit. argues the court erred when it permitted the prosecutor to introduce her admission that she took Hyman’s cell phone. She urges that she was interrogated by police without being advised of her Miranda rights. Acknowledging she was not under arrest at the time she was questioned, she contends her detention had all the earmarks of being in custody in that she was not free to leave and was told she was a suspect. We need not decide the issue.
Even if we were to conclude that Brit.’s statement should have been excluded, its admission was harmless beyond a reasonable doubt. (See People v. Cunningham (2001) 25 Cal.4th 926, 994 [claims of Miranda error are reviewed under harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24].) The court heard Officer Garcia’s testimony that Sade told him that her sister, Brit., brought Hyman’s cell phone into the Nissan. Thus, Brit.’s admission was merely cumulative.
IX. The Alleged Introduction of Inadmissible Evidence
Brit. complains the court allowed the prosecutor to elicit testimony that Kiana Alford’s car was vandalized after she testified at the hearing. She argues the evidence was irrelevant and distracted the court with unsubstantiated claims of witness intimidation. We are not persuaded.
Lineshia Hill’s testimony implied that Alford would not have been able to identify any of the assailants from the vantage point Alford had in the car. The prosecutor, in attempting to establish bias on the part of the witness, asked Hill whether she was reluctant to testify. In that regard, Hill was asked whether she was aware that Alford’s car had been damaged after Alford testified at the adjudication. Whether a witness’s fear of retaliation has an effect on his or her testimony is relevant. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) It was within the trial court’s discretion to determine whether such testimony was outweighed by its prejudicial effect. We review the trial court’s ruling using the deferential abuse of discretion standard. (People v. Hoyos (2007) 41 Cal.4th 872, 898.) The prosecutor’s questions focused mainly on Hill’s knowledge of the incident and did not dwell on the details. The trial court’s refusal to limit the cross-examination was not an abuse of discretion.
X. The Alleged Failure of the Juvenile Court to Presume Minors Innocent
Brit. latches onto three isolated statements made by the trial court and concludes the bench officer did not presume minors innocent. Assuming the contention has not been forfeited, it is without merit.
She notes that when the court was discussing the need to keep the minors’ names out of the press, it stated minors “ought not [to] suffer that stigma if, certainly, they are innocent.” Brit. argues this is evidence that the judge believed minors to be conditionally innocent. She points out that when the court was considering whether to detain minors it observed that it was “mandated to look [at] the charges as being true.” Finally, when the prosecutor voiced her concern over the vandalism of Alford’s car, the court commented, “As far as witnesses and names and identification, persons identifying other persons, of course the court can’t be blind to all that goes on.”
There was no objection lodged to the court’s comments below. Any concern that the court did not understand the presumption of innocence could and should have been addressed then. Thus, the claim is forfeited.
In any event, we reject Brit.’s speculative assertion on the merits. Nothing the court said can reasonably be interpreted in the manner Brit. proposes. The first comment is a statement of fact. A minor whose charges are yet to be adjudicated has a right to have his or her name kept from the public. Although Brit. argues that the last two comments are evidence of the court’s misunderstanding of the presumption of innocence, she fails to explain how she came to that conclusion. Her inability to do so establishes the tenuous nature of her claim.
XI. The Admission of the Blood Evidence
Emerald contends the court erred when it allowed the admission of the evidence that a stain on her jeans was presumptively blood. She claims the late discovery of the test results hampered her ability to prepare a defense and the evidence was not sufficiently probative.
While Emerald concedes the prosecutor turned over the necessary reports as soon as she received them, she asserts the prosecutor did not explain why it took so long to have the stains examined by the expert. She argues the mid-hearing introduction of the evidence prevented her from presenting a defense for several reasons: (1) she did not have time to prepare for cross-examination of the expert; (2) she did not have an adequate opportunity to obtain her own expert; and (3) she had already cross-examined the prosecution witnesses without knowing about the blood evidence. As matters turned out, we fail to see how she was prejudiced by the alleged discovery delay.
On December 18, Emerald’s attorney cited the same grounds pressed on appeal when she objected to the admission of the blood evidence. The trial court allowed counsel to postpone cross-examination to give her time to prepare and also appointed an expert. On December 29, when the attorney began her cross-examination of the prosecution expert, she did not claim she needed more time to prepare or consult with an expert. Instead, she was able to establish during questioning (which took up less than three pages of transcript) that the expert could not state whether the stain consisted of human blood or how long the stain had been on Emerald’s jeans. Emerald’s counsel did not attempt to explain how the belated discovery of the blood evidence unfairly impacted her cross-examination of other witnesses. We can safely assume that if the blood evidence had presented other avenues of inquiry with respect to witnesses who had testified previously, Emerald’s attorney would have asked to reopen. She did not. We conclude that any purported delay in discovery was harmless.
As to the court’s decision to admit the testimony, we note counsel did not object on grounds of relevance under Evidence Code section 352. As such, the claim is forfeited. (People v. Smith (2003) 30 Cal.4th 581, 629-630.) On the merits, Emerald does not attempt to explain why the probative value of the testimony was substantially outweighed by its prejudicial effect. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
XII. The Lineup Request
Anthony contends the juvenile court erred when it denied his motion for a pretrial lineup. He argues two facts required the trial court to grant his request. One, he was the only male at the showup, thus making the likelihood of misidentification greater, and two, the only witness who identified him at the showup, Alford, was unable to recognize him at trial. Thus, he claims there was a misidentification that a live lineup could have resolved.
Our Supreme Court has held that “due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. [Fn. omitted.] [¶] The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge.” (Evans v. Superior Court (1974) 11 Cal.3d 617, 625.)
We have reviewed the transcript of the November 27, 2006 hearing on Anthony’s lineup motion. The problem with his argument on appeal is that he does not rely on the facts before the court at the time of the hearing. While it is true that Alford was the only witness who identified Anthony at the showup and testified, the facts known to the court at the hearing on the lineup motion were quite different. There, the prosecutor informed the court that two of the witnesses who were present at the showup identified Anthony. In addition, Anthony had admitted to police that he was present at the scene of the assaults. The court ruled that Anthony failed to carry his burden of showing there was a reasonable likelihood of a mistaken identification that a lineup would tend to resolve. Based on the information it had at the time, we cannot say the court abused its discretion in denying the motion.
Moreover, we fail to see how a lineup would have yielded any relevant testimony for the court to consider. Anthony had ample opportunity to challenge Alford’s identification and he was able to dilute the strength of her testimony. Alford admitted at the adjudication that she had no independent recollection of any of the suspects. She testified her identification of specific individuals was based solely on her review of the photographs of the suspects taken on the night of the showup and the statements she made to police at the time. Thus, evidence that she was unable to identify Anthony at a lineup (assuming that was the case) would have presented nothing new. The fact would remain that Alford’s identification was based on her viewing of the showup. This also supports our conclusion that the court did not err in denying Anthony’s request for a lineup. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 560-561.)
XIII. Cumulative Error
As we have concluded that no substantive error occurred during the adjudication, minors’ claim of cumulative error necessarily fails.
XIV. The Conditions of Probation
Some of the minors contend that certain terms and conditions of their probation must be changed. We address the individual claims.
Antoinette states the court ordered her to complete 200 hours of community service; however, the minute order reflects she is required to complete 250 hours. She urges the minute order must be corrected to comport with the oral pronouncement of judgment. The Attorney General concedes the point. We have reviewed the record and agree the clerical error in the minute order must be corrected as it does not accurately set forth the trial court’s pronouncement on the record. (People v. Mitchell (2001) 26 Cal.4th 181, 187.)
Tan. and Breana claim that certain terms and conditions of probation set forth in the minute order must be stricken or modified because the juvenile court did not orally pronounce each of them on the record at the dispositional hearing. They are incorrect. All terms and conditions of probation need not be set forth in detail on the record as long as the probationer knows what they are. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155.) Neither minor suggests that she is unaware of the probationary conditions being challenged. Indeed, given that the minors set forth the specific terms of probation in question in their briefs, they would be hard pressed to claim ignorance. There is no error.
Breana’s reliance on In re Pedro Q. (1989) 209 Cal.App.3d 1368 does not assist her. There, the minor was found to be in violation of a condition that had been imposed by the probation officer, not the court. The issue was not whether the minor’s knowledge of the condition vitiated the need for the court to state it on the record. Rather, the appellate court determined that a condition not imposed by the court was not valid. The case has no application here.
Finally, Breana argues that three conditions of probation are overbroad and vague. She was ordered (1) not to engage in any activities disapproved of by her parents, (2) not to associate with anyone disapproved of by her parents, and (3) not to engage in any gang activity. She contends each condition fails to provide her with adequate notice of the specific behavior that is forbidden. The Attorney General concedes the point and we accept the concession. The conditions at issue must include the additional element that Breana be aware that a specific activity or person is disapproved of by her parents and that certain activity constitutes gang activity. (In re Sheena K. (2007) 40 Cal.4th 875, 889-892.) As minors joined in all arguments raised that will inure to their benefit, we will modify the terms of probation to add these qualifications for all.
XV. Maximum Term of Confinement
At the time of disposition, minors were placed home on probation; however, the court nonetheless imposed a maximum term of confinement. Antoinette, Breana, and Tan. urge this was error and request that the term be stricken from the dispositional order. The Attorney General concurs the court erred, but asserts we need take no action because the term has no legal effect. In our view, it makes little sense to allow a term improperly imposed by the court to remain and we will order it stricken. (See In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) As with the modification of the terms and conditions of probation, this order will apply to all dispositional orders.
DISPOSITION
The true finding on the section 12022.7 allegation as to Breana is reversed. The terms of probation are modified to reflect that minors are prohibited from engaging in any activity or associating with anyone they know is disapproved of by their parents (or guardian named in the order) or participating in any activity they know is gang related. The orders imposing a maximum term of confinement are stricken. In all other respects, the orders of wardship are affirmed.
I concur: WILLHITE, J.,
EPSTEIN, P.J.
I concur in the judgment, and the opinion in all respects save one: I believe that admission of the “presumptive blood” evidence against Emerald R. was error, although harmless in light of other evidence in the case.
As accurately recounted in the court’s opinion, stains were observed on the jeans Emerald R. was wearing on the evening of October 31, 2006, when the attacks occurred. An expert testified he examined these stains and concluded that they were “presumptive” blood. That is, a test showed that they were made by blood of some sort. But the expert was unable to say what kind of blood. Not only could he not say that stain deposits matched the blood type of any of the victims, he could not say that they contained human blood at all. For all he knew, they could have been animal blood. Nor could he say how long the deposits had been there; it could have been hours, days, months, or even years.
Emerald’s attorney objected to admission of this evidence, and asked that it be stricken. The majority takes the view that counsel failed to object on the ground of relevance, thereby forfeiting that claim on appeal. While the term “relevance” was not used (nor was a word in which that term is incorporated, such as “irrelevant”), it is clear that counsel and the court focused on relevance as well as Evidence Code section 352. Counsel said, “I would like to make a motion pursuant to 352 and my argument would be that the evidence that has been presented with regard to any blood stains on the jeans has absolutely no probative value in this case and a lot of prejudicial value in this case; and if the court were to weigh the prejudicial value against the probative value, certainly the court would not find this evidence helpful.” (Italics added.)
“‘Relevant evidence’” means evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) If the blood stain evidence had “absolutely no probative value” it would be, by definition, irrelevant. I am satisfied that the objection was sufficient to inform the court that counsel was questioning the admissibility of the evidence on relevance grounds “and” under section 352.
And it is evident that is how the court understood the objection. It responded to counsel that “as far as the introduction, I’m dealing solely with whether or not it meets that threshold of admissibility.” And again, “It’s an issue solely of threshold admissibility, solely as to whether the prejudicial impact is outweighed by any of the probative value or relevancy.” Of course, the “threshold” question is relevance. The weighing process involved in deciding a section 352 objection is only reached if the evidence is relevant in the first place. The court obviously was satisfied that the evidence was relevant and resolved the 352 weighing issue in favor of admissibility.
The issue of relevance was not forfeited.
The section 352 objection warrants little comment. If the evidence is admissible at all, none of the 352 bases for exclusion bears in this case. The evidence on blood stains was brief and did not consume an inordinate amount of time, nor (again, assuming relevance) did it mislead the court. And we cannot assume that it so prejudiced the judge in this court trial as to taint the result as unfair. The section 352 objection was properly overruled.
Which takes us back to relevance. The evidence was admitted, and used, on the theory that the blood that caused the stains came from one or more of the victims. I am satisfied that it was irrelevant and its admission was error.
The prosecution expert witness, Bryan Edmonds, testified about the “presumptive test” he conducted on the stains found on Emerald’s jeans. As he explained it, this is a chemical color test “where you add specific chemicals to a suspected stain that is blood if a color develops. It is not an identification test. It’s a test that when positive indicates that blood may be present. Usually a color test is where you take certain chemicals added to a suspected blood stain and if blood is present a color will develop.... It turns pink.” That is the result he got in this case. Asked how old a blood stain may be and still produce a positive result in this testing, Edmonds answered that it can be weeks, months, or years—there is no time limit. And he could not determine that the blood was human blood; the same test result would be produced if the blood came from a cat, a rhinoceros, or a monkey.
An issue over what appears to have been the same kind of testing was presented in People v. Coleman (1988) 46 Cal.3d 749, 774, fn. 20, where the expert explained that the color change is caused by “heme, which is the molecular part of hemoglobin, that gives hemoglobin its red color.” In another case, we learn that the substance producing the red color may not be blood at all; certain other enzymes also could have produced positive results, “including those present in cabbage and horseradish.” (People v. Burgener (1986) 41 Cal.3d 505, 526.)
Relevance—the tendency in reason to prove or disprove a disputed fact—is often tested by attenuation analysis. The greater the attenuation, and the more assumptions that must be indulged, the less probative the evidence. To borrow a phrase from another context, there is a point where the evidence is “strained till it is narrowed to a filament.” (Snyder v. Massachusetts (1934) 291 U.S. 97, 122 (lead opn. of Cardozo, J.).) At some point, the attenuation is so great that it falls below the minimum required to prove a disputed fact. (See James, Relevancy, Probability and the Law (1940) 29 Cal. L.Rev. 689; Morgan, Basic Problems of Evidence (Joint Committee on Continuing Legal Education of The American Law Institute and the American Bar Association (1961).)
There appears to be surprisingly little authority directly on point with respect to the relevance of a blood test to prove that a victim was the source of a blood stain where all that is known is that the stain was produced by some kind of blood at some time in the past. (See articles more or less on the subject, Admissibility in Criminal Prosecution, of Expert Opinion Evidence as to “Blood Splatter” Interpretation (1993) 9 A.L.R.5th 369; Authentication of Blood Sample Taken From Human Body for Purposes Other Than Determining Blood Alcohol Content (2000) 77 A.L.R.5th 201; Admissibility of Results of Presumptive Tests Indicating Presence of Blood on Object (2000) 82 A.L.R.5th 67.) But there is some California authority that bears on the point.
One of the issues in People v. Slone (1978) 76 Cal.App.3d 611, was the admissibility of evidence of blood “of some kind” found in the defendant’s car. In that case, as in this one, a criminologist testified that he tested a stain found on the seat of the defendant’s car and that it contained blood, but he could not determine whether it was human blood or how long it had been there. In that murder case, the prosecutor argued that the blood had come from the murder victim and was deposited on the seat while the defendant was attempting to dispose of her remains. The prosecutor argued that the presence of blood in the car was “a part of the [mosaic] of circumstantial evidence and added to the other evidence brought before the jury was quite relevant.” (Id. at p. 631.) The appellate court thought otherwise. Denial of the defendant’s motion to strike was error because, in light of logic, reason and experience, the blood stain evidence was “simply irrelevant.” The prosecutor was asking the jury to find that the blood was that of the victim, “in spite of the fact that there was not a scintilla of evidence to justify such an inference.” (Id. at pp. 631, 632.)
In People v. Burgener, supra, the Supreme Court found the reasoning in Slone unpersuasive. Speaking of the facts in Slone, the court said that “[i]t is difficult to view the presence of a substance which might be blood on the seat of a car in which a murder victim was seen shortly before her death as having no tendency in reason to prove that the car’s owner might have killed her.” And in the case before it, the court said that “the presence of a substance which might be blood on defendant’s shoes certainly has some tendency in reason to prove that he might have been present at the scene of a bloody shooting the night before his arrest.” (41 Cal.3d at p. 527.) The court agreed that the evidence should have been excluded under section 352, but found that error harmless in light of the strength of other evidence in the case. (Id. at p. 528.)
In this case there was very strong evidence that Emerald was throwing hard objects at the victims, but none that places her in near proximity to the victims during the attack, when they were bleeding. By contrast, in both Slone and Burgener, there was very strong evidence, aside from the blood, placing the defendant in the immediate vicinity of the victims.
Nevertheless, I am satisfied that error in admitting the blood stain evidence was harmless in this case. The evidence was strong that Emerald forcibly threw hard objects at the victims, causing pain and injury. She was identified by her appearance, including individual aspects of her clothes and jewelry. She also was among those who fled the scene. She committed these assaults in the context of an unruly crowd from which racial epithets were being yelled. She was not found to have personally inflicted great bodily injury; the finding was that she was an aider and abettor of the assaults that did produce such injury. It was reasonable for a person in her position to expect that at least one of the victims would turn and protest having harmful objects thrown at them, as happened, and that the beatings which next occurred were a natural and probable consequence of Emerald’s actions and similar conduct by others who were doing the same thing.