In re Scott W.

Filed 3/7/07 In re Scott W. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Scott W. was adjudged a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 after eight counts of felony animal cruelty, seven counts of felony vandalism, one count of feloniously discharging a firearm in a school zone, one count of feloniously discharging a firearm with gross negligence, one count of possessing marijuana, and one count of possession of a smoking device were found true. As to several of the counts, the juvenile court also found true a personal arming enhancement.

Scott challenges the adjudication, asserting the evidence was insufficient to support several of the personal arming allegations, one felony vandalism count, and the discharging a firearm in a school zone count. Further, Scott contends his constitutional rights were violated when the juvenile court found him liable on two of the counts based upon an aiding and abetting theory.

We will affirm.

FACTUAL AND PROCEDURAL SUMMARY

Starting March 10, 2005, Scotts parents went out of state for a three-day trip. Scott was supposed to stay with his grandmother in Hanford during their absence. Instead, Scott and his friend Aaron went to their friend Chads home to visit and to wait for a fourth friend, Shawn, to arrive. While at Chads house, Scott smoked marijuana and was drinking.

Scott, Aaron, and Chad began shooting frogs with a .22-caliber rifle. Shawn arrived with his .22-caliber rifle and joined the other three in shooting frogs. While engaged in this activity, some of them smoked methamphetamine.

Scott, Aaron, and Shawn then left Chads house in Shawns sport utility vehicle (SUV), taking with them both rifles and a shotgun. Scott was in the back seat. They drove on Riverbend Road to Annadale Road and slowed almost to a stop when they spotted some cows. Scott pointed his rifle out the window and fired five to seven shots at a cow. The cow started jumping up and down, causing Scott to laugh.

From Annadale Road, the three drove onto Channel Road, where Scott shot at a turkey. They continued driving along the road and when they spotted a pack of dogs, Shawn shot at one of the dogs.

They headed back to Chads house. Scott shot at a yellow street sign just before they turned into the driveway of Chads house, which is adjacent to a school. Chads father was home from work when they returned. Scott took his rifle and drove off in his van. Shawn and Aaron left in Shawns SUV.

On March 10, at approximately 6:30 p.m., William Stover was working near the horse stalls on his property when he heard shots. After the shots, Fancy, a show horse, ran to the front of the house. Fancy had been shot, although when Stover had seen her 10 minutes earlier she had been fine. A veterinarian determined Fancy had been shot near the neck. The horse did not die, but her owners were no longer able to show her or ride her because of the injury. As a show horse, Fancy had a value of $25,000.

Joseph Cosentino, Jr., lives just north of the Stover residence. He saw a minivan drive by the Stover property, nearly stop, gunshots were fired, and the van then sped away towards Piedra Road.

On March 11, 2005, Joe Rocha found one of his pregnant cows dead in the pasture about 60 feet from Riverbend Road.

Randall January raises horses on his ranch on Piedra Road. The morning of March 11, January noticed two horses were down. One horse was dead; one was thrashing around trying to stand. They had been fine the evening before at feeding time. A veterinarian was called. The veterinarian determined the one horse was in considerable pain and could move only its head and front legs, evidencing a spinal cord injury. The horse was euthanized. The veterinarian surmised Januarys horses had been shot, although he could not locate the entry wound due to the horses long hair. January valued each horse at $20,000.

The morning of March 11, Marilyn Zweigle found her horse, Oreanna, dead in front of the barn. The horse had not finished her feed from the previous evening, which was unusual. Zweigle noticed a bleeding wound in Oreannas hindquarters, although the horse had been in perfect health the day before.

Old English Rancho raises thoroughbred race horses. The afternoon of March 12, Terry Matheny, a horse trainer at the ranch, was about one-half mile from the ranch when he heard .22-caliber gunshots in the distance. Shortly after hearing the gunshots, Matheny saw a van cruising down Piedra Road by the horses pasture. He made a mental note of the van because very few cars traveled that road and because he was aware that a neighbors horse recently had been shot.

At approximately 4:15 p.m. on March 12, ranch manager Craig Allen was notified that three yearlings were in distress in the pasture about 50 feet from Piedra Road. Allen found one colt, 2004 Tia Savona, down and in obvious distress. The colt had a bullet wound in its hindquarter. Another colt, 2004 Fabulous Ballet, was down in the pasture with a tremendous amount of blood across its chest, neck, and down its legs. This colt died from drowning in its own blood. A third colt, 2004 Gravel, had a small wound to the shoulder.

A veterinarian was called to treat the injured horses. 2004 Gravel required no treatment; 2004 Fabulous Ballet was already dead. The third colt, 2004 Tia Savona, was transported to the animal hospital. It was determined that this colt had been shot in the right rear hindquarter area and a bullet had perforated the intestine. The colt had to be euthanized. A .22-caliber bullet was recovered from 2004 Tia Savona. One of the owners of Old English Rancho testified that 2004 Fabulous Ballet came from an elite racing bloodline and was valued at $100,000; 2004 Tia Savona was valued at $25,000.

Scott eventually arrived at his grandmothers house the morning of March 12, driving a minivan. He brought his .22-caliber rifle with him. Scott told his cousin that earlier he and some friends had been out shooting with the rifle and a shotgun.

On March 13, Scotts parents returned and noticed the van was damaged. Scotts mother found numerous .22-caliber shell casings inside the van, which she collected. She then called the California Highway Patrol (CHP) to report the damage because Scott told her the damage was caused by a hit-and-run driver.

A CHP officer responded and inspected the van. The officer noted the drivers side mirror and grill were cracked. Broken glass from the mirror was inside the van. Scott told the officer he discovered the damage after leaving a bowling alley in Clovis. Scott surmised it had been hit while parked. The officer opined the damage to the van could not have occurred as Scott stated.

On March 15, sheriffs deputies searched Scotts home. They found a glass-smoking pipe with marijuana residue in the bowl and a plastic baggie with a white substance hidden in a stereo speaker. A .22-caliber rifle was in Scotts bedroom, with an ammunition bag containing .22-caliber bullets and a .22-caliber magazine.

A sheriffs detective noted damage to the drivers side mirror consistent with a .22-caliber bullet. Numerous .22-caliber bullet casings were found in and around the van. The van was towed to a secured warehouse for further investigation.

Gunpowder residue was found along the dashboard and around the window frame of the van. Bullet fragments were found in the casing of the drivers side window. The bullet removed from 2004 Tia Savona had the same class characteristics as a bullet fired from Scotts .22-caliber rifle. Cell phone records for Scotts cell phone showed that the phone was used in the areas where the animal shootings occurred and at the times of the shootings.

On April 13, 2005, an amended petition was filed against Scott. On August 24, the juvenile court found true eight counts of felony animal cruelty, seven counts of felony vandalism, one count of feloniously discharging a firearm in a school zone, one count of feloniously discharging a firearm with gross negligence, one count of possessing marijuana, and one count of possession of a smoking device. As to several of the counts, the juvenile court also found true a personal arming enhancement.

On October 6, 2005, the juvenile court adjudged Scott a ward of the court, with a maximum period of confinement of 14 years 6 months. Scott was ordered committed to juvenile hall for 180 days and to attend substance abuse counseling and to perform 1,000 hours of community service.

DISCUSSION

I. Sufficiency of the Evidence

The role of the appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [] But it is the [trier of fact], not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] (People v. Sanchez (1998) 62 Cal.App.4th 460, 468, quoting People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.) Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of facts verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it. [Citation.] (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)

Whether the evidence is direct or circumstantial, the standard of review is the same. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Personal arming allegations

Scott challenges the sufficiency of the evidence to support the true findings on the personal arming allegations appended to counts 11 through 18. He contends the juvenile court erred in denying his motion for reconsideration of those findings.

Scott first contends that he must intentionally fire a gun to sustain the personal arming enhancement. Not so. (People v. Masbruch (1996) 13 Cal.4th 1001, 1014.) It is sufficient to display the weapon if it facilitates the crime. (Ibid.)

As to all of the personal arming enhancements, the gunpowder residue, the bullet fragment in the drivers mirror, the .22-caliber shell casings matching the bullet recovered from 2004 Tia Savona, and Scotts cell phone records, constitute evidence tying him to the shootings. This evidence places him at the scene of each animal shooting at the time of the shooting, establishes that shots were fired from inside the van he was driving, and the characteristics of Scotts .22-caliber rifle match the bullet recovered from 2004 Tia Savona.

Evidence established that on March 10, 2005, Scott shot Rochas cow with a .22-caliber rifle. Scott does not contest the sufficiency of the evidence to establish the arming enhancements appended to counts 3 and 4.

The evidence further established that on March 10, after shooting Rochas cow, Scott left Centerville alone in his van sometime between 5:30 and 5:45 p.m. At approximately 6:30 p.m., a horse, Fancy, was shot in Sanger, approximately 18 miles from Centerville. A van matching the van being driven by Scott was seen driving down the street and slowing to a near stop just before shots were fired at the horse then speeding away. The drivers side mirror of Scotts van bore a bullet hole consistent with shots being fired out the drivers window.

The circumstantial evidence of the description of the van, the bullet hole in the side mirror of Scotts van, Scotts firing at other animals in Centerville earlier in the day in a similar manner, the cell phone records, and Scotts driving in the general vicinity of Sanger based on the time he left Centerville, constitute sufficient evidence to support the juvenile courts finding that Scott personally shot Fancy. Thus, there is no basis upon which to set aside the findings on the counts concerning Fancy, counts 11 and 12. (People v. Rehmeyer, supra, 19 Cal.App.4th at p. 1765.)

On March 11, at a ranch about one mile from where Fancy was shot, January found two of his horses down in the pasture. The veterinarian, although unable to find bullet wounds due to the horses long hair, opined that the animals had been shot. Januarys ranch was located in the immediate vicinity of other sites where Scott had been shooting animals; Januarys horses were shot during the same time frame as the other animals. The juvenile court found true the personal arming enhancements appended to counts 13 through 16, relating to Januarys horses. Although other inferences might reasonably be drawn from the evidence, it is not our function to reweigh the evidence or reevaluate the credibility of witnesses. There was sufficient evidence to support the true findings. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

Also on March 11, Zweigle found her horse, Oreanna, dead. The horse had been in good health the night before, but on the morning of March 11 there was a bleeding wound in Oreannas hindquarter. Zweigles home was in the vicinity of the ranches where Fancy and Januarys horses were shot. Zweigle lived about eight-tenths of a mile from where Fancy was shot and approximately 1.5 miles from where Januarys horses were shot. Again, the timing of the shooting and the close proximity to the location of the other shootings provides sufficient evidence to support the juvenile courts true findings on the personal arming enhancements appended to the counts concerning Oreanna, counts 17 and 18, even though the evidence might support a contrary conclusion. (People v. Rehmeyer, supra, 19 Cal.App.4th at p. 1765.)

Felony vandalism

Scott contends the evidence was insufficient to establish that he caused over $400 in damage to the horse, Fancy, as set forth in count 12.

Fancys owner testified that she paid $12,500 for the show horse when the horse was a year old. Fancy had been trained for shows and had won several awards. Although Fancy survived the shooting, the horse could not be ridden or entered into competition any more due to its injuries. The owner estimated the replacement value for a comparable horse at $25,000. The juvenile court found count 12 true, finding that the damage was over $400.

The testimony of Fancys owner was sufficient to support the finding that the amount of damage to the horse exceeded $400 in value. The value of a trained competition horse like Fancy was $25,000. After the shooting, Fancys value as a competition horse was nil. The testimony of one witness is sufficient to sustain a finding. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)

Discharging a firearm in a school zone

Scotts last challenge to the sufficiency of the evidence is to count 1, discharging a firearm within 1,000 feet of a school.

Scott shot at a yellow street sign directly across the street from Richard Andrewss property. Andrews testified that he heard a rifle shot and within seconds thereafter Scott and his friends drove onto the Andrews property. The street sign was about 100 feet from Andrewss driveway. A school is located adjacent to the Andrews property.

We presume in support of the judgment every reasonable inference that can be deduced from the evidence. (People v. Davis, supra, 10 Cal.4th at p. 509.) From the location of the street sign, the location of the school, and the timing of the shot, a reasonable inference can be made that the shot was fired within 1,000 feet of the school property. Substantial evidence supports the elements of count 1.

II. Aiding and Abetting Theory

Interestingly, although Scott does not challenge the sufficiency of the evidence supporting the true findings on the arming enhancements relating to the shooting of Rochas cow, counts 3 and 4, he contends that his constitutional due process rights were violated when the juvenile court sua sponte relied upon an aiding and abetting theory to sustain those counts.

Scott did not complain in the juvenile court to any lack of notice of, or inability to defend against, an aider and abettor theory of liability on counts 3 and 4. Having failed to raise this contention in the juvenile court, he has not preserved this issue for review. (People v. Cole (2004) 33 Cal.4th 1158, 1205.)

Regardless, Penal Code section 31 provides that all persons concerned in the commission of a crime are principals, whether they directly commit the criminal act or aid and abet in its commission. Additionally, Penal Code section 971 provides that no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal. Once Scott was charged as a principal in the offense, he was put on notice that he could be found liable as a direct perpetrator or an aider and abettor and no further notice was needed. (People v. Lucas (1997) 55 Cal.App.4th 721, 737.)

Scott argues, without citing any authority, that Penal Code section 971 does not apply to juvenile proceedings. We are not persuaded. We see no reason to depart from long-established authority holding that Californias charging statutes comply with constitutional due process requirements.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

GOMES, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.