In re T.M.

Filed 4/27/07 In re T.M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Charles Scarlett, Judge. Affirmed.

Laina Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

Defendant T.M. appeals from the order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 entered after the court determined that he committed the crime of being a minor in possession of a firearm, a felony violation of Penal Code section 12101, subdivision (a)(1). The court ordered defendant placed in the camp community placement program and imposed various terms and conditions of probation. Defendants sole contention on appeal is that the evidence is insufficient to establish his identity as the perpetrator of the offense. We reject his contention and affirm the order.

FACTS

Around 4:30 p.m. on March 15, 2006, Los Angeles Police Officers Jeffrey Heller, Chris Giargiari and Brian Collins were in a patrol car in the area of 95th Street and Defiance Avenue in Los Angeles. Officer Collins, who was driving, stopped the car in front of 9543 South Defiance Avenue, a single family residence. Defendant was standing in front of the residence. Another unknown individual was sitting on a couch on the porch near the front door of the house. Officer Collins knew defendant, as he had had several prior contacts with him.

As Officer Collins stopped his patrol car in front of the residence, defendant started to walk away. Officers Heller and Giargiari got out of the car and pursued defendant, who now was running alongside the house. Defendant appeared to be holding the front of his waistband with his right hand. Both officers saw defendant toss a chrome or stainless steel object with his right hand and heard the object hit a piece of corrugated tin leaning against the side of the house. Neither knew what the object was at the time, but Officer Heller suspected it was a gun.

Officer Heller continued to chase defendant while Officer Giargiari retrieved the object defendant had discarded. It was a loaded chrome .22 caliber semi-automatic handgun. Officer Collins, meanwhile, drove around the block and detained defendant when he ran onto Compton Avenue. Officer Heller arrived as Officer Collins ordered defendant onto the ground. The unidentified individual who had been sitting on the porch of the home on South Defiance Avenue left the scene during the time the officers pursued and apprehended defendant. Officer Collins drove defendant to the police station.

Officer Collins also had prior contacts with defendants brother, Ty.M. Although Officer Collins believed the brothers were identical twins, he was not sure. He could not tell them apart, however.

Although none of the officers recalled asking defendant to identify himself, a booking report would have been completed after the arrest and would have included the arrestees identifying information.[1]During the adjudication hearing, all three officers unequivocally identified defendant as the person they pursued and arrested on March 15, 2006.

DISCUSSION

Defendant challenges the sufficiency of the evidence supporting the juvenile courts determination that he is the one who possessed the firearm. Defendant claims that inasmuch as he has an identical twin brother and none of the officers asked the person they arrested to identify himself, the officers in-court identifications of defendant as the person they arrested was not enough. In defendants view, the People were required to present evidence establishing that his brother did not perpetrate the crime. We disagree.

When the sufficiency of evidence is challenged on appeal, we consider the evidence in the light most favorable to the judgment. We also presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence. The test is not whether the evidence establishes guilt beyond a reasonable doubt but rather whether substantial evidence supports the challenged factual determination. (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Balkin (2006) 145 Cal.App.4th 487, 491.) Our only function in this case is to determine if any rationale trier of fact could have found that defendant was the perpetrator of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; Balkin, supra, at pp. 491-492.) As the California Supreme Court has observed, Reversal on [insufficiency of evidence] ground[s] is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the true finding]. (Balkin, supra, at p. 492, quoting Bolin, supra, at p. 331.)

In this case, there is no evidence that defendant actually had an identical twin brother. Although Officer Collins testified that defendant had a twin brother, the officer was unsure if they were identical twins. That Officer Collins could not tell the brothers apart does not establish that they, in fact, are identical twins. Indeed, the juvenile court itself aptly observed that fraternal twins sometimes look alike.

In any event, even if we assume for the sake of argument that Ty.M. is defendants identical twin brother, this fact standing alone is not enough to disturb the courts determination that defendant was the minor who possessed the .22 caliber semi-automatic handgun. (Cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1136.) Defendants suggestion that it may have been his brother, Ty.M, who was arrested on the day in question is grounded in speculation. (People v. Green (2004) 125 Cal.App.4th 360, 376.) Speculation is not evidence, however. (People v. Waidla (2000) 22 Cal.4th 690, 735.)

At the adjudication hearing, Officers Collins, Heller and Giargiari each identified defendant as the individual who was standing in front of the residence on South Defiance Avenue, who ran from the scene when Officers Heller and Giargiari got out of the patrol car, and who was arrested after being pursued by Officers Heller and Giargiari. It was during the pursuit that defendant tossed an object later determined to be a chrome .22 caliber semi-automatic handgun. Contrary to defendants position, this evidence alone is sufficient to support the juvenile courts determination that defendant committed the crime alleged in the petition.

That none of the three officers specifically remembered asking him his name does not compel a contrary conclusion. During the booking process, defendants identifying information would have been obtained. This information, in turn, would have been used to file the Welfare and Institutions Code section 602 petition, which names defendant as the minor who possessed the handgun.

Defendant (rather than his brother Ty.M.) was the individual present during these delinquency proceedings, as his trial counsel acknowledged. Although defendant was under no obligation to present any evidence negating his culpability, as the juvenile court observed, if he was claiming that it was his identical twin the officers had arrested, he was free to present evidence of mistaken identity. Inasmuch as he failed to do so, the record contains no evidence establishing that the person arrested on the date in question was anyone else but defendant T.M.

As previously detailed, when assessing the sufficiency of the evidence, the test is not whether the evidence proves guilt beyond a reasonable doubt. The test is whether substantial evidence supports the factual determination made. (People v. Balkin, supra, 145 Cal.App.4th at p. 491.) Inasmuch as any rational trier of fact could have found beyond a reasonable doubt that defendant was the perpetrator of the crime based on the evidence presented during the adjudication hearing, we conclude that there is no basis for disturbing the juvenile courts identity determination. (Id. at pp. 491-492.)

The order of wardship is affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] The record does not reveal who booked defendant following his arrest.