In re Steven P.

 

 

 

 

 

 

 

 

 

 

Filed 6/10/13  In re Steven P. CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

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opinion has not been certified for publication or ordered published for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

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re STEVEN P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,         Plaintiff and Respondent,               v.   STEVEN P.,         Defendant and Appellant.	G047292            (Super. Ct. No. DL034681)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Donna L. Crandall, Judge.  Affirmed in part; reversed in part.

                        James M. Crawford, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Christine
Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

*               
*                *

                        Steven P. appeals from a
judgment after the juvenile court declared him a ward of the court pursuant to
Welfare and Institutions Code section 602, and found true the petition’s
allegations of second degree robbery
(Pen. Code, § 211), and receiving stolen property (Pen. Code, § 496,
subd. (a)).  Steven contends the juvenile
court erred by excluding his post-detention statements to police that were
consistent with his alibi defense—an argument we reject.  Steven also contends the juvenile court erred
by sustaining the petition on the receiving stolen property count because he could not be convicted of both robbery and
receiving stolen property.  The Attorney
General concedes the latter point, and we agree.  Accordingly, we reverse the finding on the
receiving stolen property count and affirm the judgment as modified. 

FACTS

                        Around midnight on February 17, 2012, Enner Mendoza was walking towards his
apartment complex in Anaheim when
he noticed a gold four-door car driving towards him.  When the car sped up, Mendoza
became nervous and started walking faster. 
Suddenly, Mendoza noticed
three young men were following him.  The
three men surrounded Mendoza—one in
front and two from behind.  One of the
men asked Mendoza what time it
was.  Another one of the men placed a
hard object against the back of Mendoza’s
neck, and the men told Mendoza to
give them all his belongings.  Mendoza
complied, giving them his black messenger bag, which contained a laptop
computer, an iPad, an iPhone, and headphones. 
The bag also contained important documents including Mendoza’s
passport and his disability application paperwork.  The men also took Mendoza’s
wallet and watch.  They got in the car
and were laughing as they drove off.

                        Mendoza
went inside his apartment and called 911 while tracking his iPhone with a GPS
tracking program on his computer describing its location to the
dispatcher.  Police located the car at a
liquor store in Fullerton.  Steven and two other men were in the car and
were detained by police.  The police
found Mendoza’s black bag in the
trunk of the car with his laptop computer, iPad, and watch inside the bag.  A replica handgun was found under the front
passenger seat of the car. 

                        An officer brought Mendoza
for an in-field line-up.  Mendoza
identified Steven as one of the perpetrators—the one who confronted him,
blocked his path, and did most of the talking—and identified his property.  Mendoza
also identified one of the other men, but could not identify the third.  At trial, Mendoza
testified he recognized Steven as one of the three men who confronted him.

                        Steven presented an
alibi defense and denied participating in the robbery.  He testified that on the night of the Mendoza
robbery, he was at his friend Maritza Diaz’s house from about 11 p.m. until about 12:15 a.m.  After
leaving her house, Steven was walking down an alley when a gold car
approached.  Steven knew the man in the
front passenger seat, Jagger Molina, but did not know the driver.  Steven got into the backseat of the car.  Molina said he had a stolen laptop computer
he needed Steven to sell; Steven said he might know someone who would buy
it.  They drove to a liquor store and
were in the car when the police arrived. 
Diaz corroborated Steven’s alibi testimony, testifying he was with her
from about 11 p.m. until a little after midnight and he left her house on foot
walking down the alley.

                        The petition charged
Steven with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))
(count one); receiving stolen property (Pen. Code, § 496, subd. (a))
(count two); possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a))(count three); and possession of controlled substance
paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)) (count
four).  On the prosecution’s motion, the
court dismissed the controlled substance counts (counts three and four). 

                        The juvenile court
sustained the petition and found the allegations in counts one and two
true beyond a reasonable doubt.  The
court subsequently declared Steven a ward of the court.  It found the matter to be a felony with a
maximum term of confinement of five years (see Pen. Code, § 213, subd.
(a)(2) [second degree robbery punishable by term of two, three, or five
years]), noting that pursuant to Penal Code section 654 it could not
punish Steven for both robbery and receiving stolen property, and committed
Steven to juvenile hall for 365 days with 182 days of custody credits and probation
upon release. 

DISCUSSION

1.> 
Admissibility of Steven’s Prior Consistent Statements to Police

                        Steven contends the
juvenile court erred by not permitting him to introduce into evidence
statements he made to police on the night of his arrest that Steven asserts
were consistent with his alibi defense. 
We find no error.

                        After Steven testified,
and the prosecution cross-examined him impeaching him with prior juvenile
adjudications and questioning his alibi, Steven called Anaheim Police Officer
Jared Dewald as a defense witness. 
Dewald interviewed Steven at the liquor store after he was detained and
handcuffed.  When defense counsel asked
Dewald if Steven had told him what happened prior to his arrest and asked “did
he tell you that he had been at--[,]” the prosecutor objected the question
called for hearsay.  Defense counsel
responded, “these are going to be prior consistent statements.”  The juvenile court excluded the testimony. 

                        Steven contends
statements he made to Dewald that were consistent with his alibi defense at
trial were admissible prior consistent statements because they were offered
after the prosecution “attacked [Steven’s] alibi defense on

cross-examination . . . .”  “[A]n appellate court applies the abuse of
discretion standard of review to any ruling by a trial court on the
admissibility of evidence, including one that turns on the hearsay nature of
the evidence in question [citations].” (People
v. Waidla (2000) 22 Cal.4th 690, 725.) 
A “trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.”  (People
v. Carmony (2004) 33 Cal.4th 367, 377.) 


                        The juvenile court did
not abuse its discretion by excluding post-detention statements to Dewald that
Steven asserts would have been consistent with his trial testimony.href="#_ftn1" name="_ftnref1" title="">[1]  Evidence Code section 1236 provides,
“Evidence of a statement previously made by a witness is not made inadmissible
by the hearsay rule if the statement is consistent with his testimony at the
hearing and is offered in compliance with [Evidence Code] [s]ection 791.”

                        Evidence Code section
791 provides:  “Evidence of a statement
previously made by a witness that is consistent with his testimony at the
hearing is inadmissible to support his credibility unless it is offered
after:  [¶] (a) Evidence of a statement
made by him that is inconsistent with any part of his testimony at the hearing
has been admitted for the purpose of attacking his credibility, and the
statement was made before the alleged inconsistent statement; or [¶] (b) An
express or implied charge has been made that his testimony at the hearing is
recently fabricated or is influenced by bias or other improper motive, and the
statement was made before the bias, motive for fabrication, or other improper
motive is alleged to have arisen.”

                        “A prior statement
consistent with a witness’s trial testimony is admissible only if either (1) a
prior inconsistent statement was
admitted and the consistent statement predated the inconsistent statement, or
(2) an express or implied charge is made that the testimony is recently
fabricated or influenced by bias or other improper motive, and the consistent
statement was made before the bias, motive for fabrication, or other improper
motive is alleged to have arisen. 
[Citation.]”  (>People v. Smith (2003) 30 Cal.4th 581,
630 (Smith).)

                        Here, there was no prior
inconsistent statement admitted against Steven to which his post-detention
consistent statements would have been relevant. 
Steven’s argument is based on the second predicate, i.e., a charge that
trial testimony was recently fabricated or has been influenced by bias or other
improper motive.  Steven argues the
prosecution’s cross‑examination of him “implicitly accused [Steven] of
fabricating his alibi testimony” and thus his post-detention statements to
police that were consistent with his trial testimony would had “served as
proper rehabilitation . . . â€  But his argument ignores that his prior
consistent statements were made after
his motive for bias or fabrication arose and therefore were not admissible as a
prior consistent statement.  (>People v. Hitchings (1997)
59 Cal.App.4th 915, 920-921.) 
Steven had already been detained and handcuffed and was in possession of
items recently stolen from Mendoza, which Steven admits he knew to be
stolen.  As explained in >Hitchings, “the arrest provided a motive
for bias or fabrication.”  (>Id. at p. 921; see also >Smith, supra, 30 Cal.4th at
pp. 629-630 [trial court did not abuse discretion by excluding defendant’s
post-arrest statements because they were made after defendant’s motive to
fabricate arose].)

                        Moreover, even if we
were to conclude the juvenile court’s ruling was error, we cannot say it is
reasonably probable the court would have reached a more favorable result in the
absence of the error.  (>People v. Watson (1956) 46 Cal.2d 818,
836.)  Mendoza identified Steven on the
night of the robbery and at trial as one of the perpetrators.  The court heard Diaz’s testimony
corroborating Steven’s alibi testimony. 
We cannot say it is reasonably probable the court would have made a
different finding had it received evidence that when he was apprehended, Steven
told police the same story he told at trial. 


2.> 
Receiving Stolen Property Count

>                        The
juvenile court sustained allegations of second degree robbery and of receiving
stolen property, i.e., Mendoza’s messenger bag, laptop computer, iPad, iPhone,
wallet, etc.  However, as the Attorney
General concedes, a person may not be convicted of both stealing property and
receiving the same stolen property. 
(Pen. Code, § 496, subd. (a); see also People v. Garza (2005) 35 Cal.4th 866, 874; People v. Jaramillo (1976) 16 Cal.3d 752, 757 (>Jaramillo).)  This limitation has been applied to juvenile
court proceedings as well.  (See e.g., >In re Kali D. (1995) 37 Cal.App.4th 381,
385, disapproved on other grounds in People
v. Allen (1999) 21 Cal.4th 846, 861, fn. 16.)  Theft is a lesser included offense of
robbery, as theft is an element of that offense.  (People
v. Kelley (1990) 220 Cal.App.3d 1358, 1366.)  Thus, one cannot be convicted of both robbery
and of receiving the same stolen property taken during the robbery.  (People
v. Stephens (1990) 218 Cal.App.3d 575, 586 (Stephens); see also People v.
Narvaez (2002) 104 Cal.App.4th 1295, 1297-1298, fn. 2.)  Although the juvenile court attempted to
resolve this problem when it specifically noted that under Penal Code
section 654 it could not punish
him for both offenses, its solution ignores the basic rule that a defendant may
not be convicted of both charges.  (>Jaramillo, supra, 16 Cal.3d at p. 757.) 
Accordingly, the appropriate remedy is to reverse the sustained
allegation as to the violation of Penal Code section 496, subdivision (a).  (Stephens,
supra, 218 Cal.App.3d at
p. 587.)  We note that because the
court did not impose punishment for this charge, our decision does not change
Steven’s maximum term of confinement.

DISPOSITION

                        The sustained allegation
in count 2 for receiving stolen property (Pen. Code, § 496, subd.
(a)), is reversed.  In all other
respects, the judgment is affirmed.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

THOMPSON, J.