In re A.A.

Filed 7/17/07 In re A.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor A.A. was within the provisions of Welfare and Institutions Code section 602 in that he had committed two counts of carjacking (Pen. Code, 215; further undesignated statutory references are to the Penal Code; counts one & two), two counts of robbery ( 211; counts three & four), and two counts of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); counts five & six). The minor was adjudged a ward of the juvenile court and committed to the Sacramento County Boys Ranch under the supervision of the probation department.

On appeal, the minor contends the evidence supporting the juvenile courts determination is insufficient as a matter of law. We affirm the judgment.

FACTS

Prosecution case-in-chief

In the early morning hours of June 27, 2005, Jesse M., age 17, and his uncle Gabriel Gonzalez, age 19, stopped for gasoline at a service station on Raley Boulevard. The two young men were in separate vehicles. Jesse was driving a 2004 Chevrolet Tahoe SUV and Gonzalez was driving a Chevrolet Corvette. Jesse pumped gas into his SUV. Gonzalezs car was parked behind Jesses. The area around the gas pumps was well lit.

Also at the station was a silver or gray Toyota van containing seven to 10 young Black males who appeared to be between 16 and 20 years old.^[1] Most of the young men were wearing dark jeans and white shirts, although some were wearing black shirts. One of the Black males, perhaps associated with the van, was talking on a cellular telephone and walking around while looking at Gonzalezs Corvette. That person approached Jesse as he was getting into the SUV and asked him for some change. When Jesse replied that he did not have any change, he was attacked by that person and two others who began hitting Jesse and pulling him from his SUV.

Gonzalez got out of his Corvette and came to Jesses aid. Two to five more individuals then joined the fray. They pulled Jesse from the SUV, threw him to the ground, and proceeded to punch and kick both Jesse and Gonzalez. When Gonzalez asked the assailants what they wanted, they responded that they wanted Gonzalezs and Jesses wallets and keys. Gonzalez gave up his wallet to one of the attackers and another attacker took Jesses wallet from the SUV. Using keys that Jesse and Gonzalez had left in their vehicles, the assailants got into the SUV, the Corvette, and the van. The three vehicles then drove away from the station.

The station attendant called 911 while the assaults were occurring. Jesse testified that he called 911 again after the assaults had concluded. The police arrived approximately five minutes after the assailants had left the station.

Sacramento Police Officers Roy Hastings and Dani Longanecker were together on patrol at the time of the incident. They had been dispatched to the intersection of Harris Avenue and Belden Street following complaints that a large group of people was causing a disturbance and refusing to leave. Upon arrival, the officers saw approximately 30 people in the streets. Officer Hastings heard a loud crashing sound. Hastings then saw a gray van pull out onto Belden Street and leave the area. The officers learned that the van had backed into and damaged a garage door.

While they were investigating that collision, the officers received another dispatch call, this one regarding the carjacking of a black SUV and a black Corvette. Officer Hastings observed the lights of an approaching vehicle, later determined to be the black SUV taken from Jesse M., and watched as it came to a stop. The officers saw numerous individuals running away from the SUV. Officer Hastings got within 15 feet of an individual who was approximately 60 feet from the SUV and running away from it. Hastings later identified that person as the minor.

Officer Hastings notified other officers by radio that the stolen SUV had been recovered and that its occupants were running southbound on Haywood Street. Numerous police cars were now in the area, as was a police helicopter. The minor, along with other young men, was taken into custody less than a block from where Officer Hastings had seen him walking away from the SUV. The minor, along with the other persons who had been taken into custody, was returned to the location where the SUV had been abandoned.

Sacramento Police Officer Timothy McMahan was on duty at the time of the incident. He responded to areas where two groups of people had been detained. Then McMahan went to the service station where he took brief statements from the clerk and from Jesse and Gonzalez. Both Jesse and Gonzalez said that they believed they could identify the persons involved in the attack.

Officer McMahan advised Jesse and Gonzalez that he would transport them to view several persons who were being detained. He admonished them not to draw any conclusions from the fact that the people were being detained. McMahan also told Jesse and Gonzalez that it was important to exonerate the innocent as well as to identify the guilty.

Officer McMahan took Jesse and Gonzalez to the intersection of Harris Avenue and Haywood Street, where several potential suspects were being detained.^[2] That group of detainees included two to four females. Jesse and Gonzalez did not identify anyone in that group as having been involved in the robbery. Gonzalez thought that one person looked suspicious, but he did not identify that person because he was not a hundred percent sure.

Jesse and Gonzalez were then taken to where other persons were being detained. At that location, both Jesse and Gonzalez identified the minor and K.W. as being part of the group that committed the robberies.

Jesse and Gonzalez viewed the detained persons together from the back seat of the patrol car.^[3] Each person was brought forward separately and illuminated by a spotlight. Jesse and Gonzalez conferred with one another while viewing the suspects. Officer McMahan opined that Gonzalez was the leader of the conversation. Jesse testified that his conversations with Gonzalez were only to eliminate persons where there was a disagreement between the two of them about whether or not a particular detainee had been involved.^[4] Gonzalez testified that the conversations with Jesse were about the men whom they did not recognize and therefore did not identify. There was no conversation between Jesse and Gonzalez regarding the identification of the minor and K.W. Gonzalez testified that Jesses presence in the car affected his identification of the minor [n]ot at all.

At the jurisdiction hearing, Jesse identified the minor as one of the men who had attacked him during the incident. Jesse was one hundred percent confident of his identification.^[5]

Similarly, Gonzalez identified the minor as one of the men who attacked him and his nephew during the incident.

K.W. testified that he was present at the Chevron station, that he participated in the robbery, and that the minor also participated. In exchange for K.W.s admission of a robbery charge and his testimony in this case, the prosecutor dismissed five felony counts, two of which were strikes, and agreed that K.W. would receive a disposition of electronic monitoring.

K.W. testified that he had just met the minor on the night of the incident, at a party attended by more than 50 people. K.W. left the party and went to the Chevron station in a Toyota van, which was carrying about eight people, including the minor. K.W. said that while he was paying for gas for the van, he saw his friend Mike Earl open the door [of the SUV] and he hit the man, evidently Jesse. K.W. testified that the minor and another man joined three other men who had first attacked the man in the SUV. K.W. admitted that he joined in and hit the uncle who was coming to the aid of his nephew. K.W. stated that he left the station in the SUV, which was driven by Mike Earl. The minor was also in that vehicle. K.W. testified that, because of the large number of police cars in the area, Earl parked the SUV and turned it off. Everyone got out of the SUV and started walking in different directions because they did not want to get caught in the vehicle. K.W. fled with the minor, and they were together until they were detained by the police.^[6]

K.W. testified that he had lied to his mother repeatedly in telling her that the minor had not been involved in the carjacking. K.W. further testified that he had changed his story only after consulting with his attorney about the plea agreement.

The SUV, the Corvette and the Toyota van were processed for fingerprints. It was stipulated that the only identifiable fingerprint found in the van was that of Mike Earl. The minors fingerprints were not found in any of the vehicles. A Sacramento Police officer testified that the absence of an individuals fingerprints from a crime scene does not necessarily mean that individual was not at the scene.

Defense

K.W.s mother testified regarding the visits she had with her son while he was in juvenile hall prior to the resolution of this case. On the third visit, K.W. told his mother he did not believe the minor was present and they got the wrong person. K.W.s mother met with the minors mother and told her what K.W. had said. K.W.s mother did not become aware of the full extent of K.W.s and the minors involvement in the crimes, and that her son would have to testify against the minor as part of his plea agreement, until shortly before the plea agreement was executed.

A.O., a friend of the minor, testified he attended the party with the minor and others. They left the party immediately after observing an off-gray or whitish van, such as a Honda, Toyota or Nissan, crash into a garage. Because they knew there would be trouble, A.O., the minor and the others began walking toward A.O.s house. As they walked, they were passed by a Chevrolet SUV occupied by a group of Black males who yelled that they had just stolen the truck from a gas station. The SUV stopped and its occupants ran. At that time, the minor was right at A.O.s side. A.O. was one hundred percent sure that the minor was never in the SUV.

J.W. testified he had known the minor for approximately three years. J.W. attended the party with A.O. and had seen the minor. J.W. said they were together most of the time. At some point, J.W. and others went outside because of the heat. There was dancing in the street. While he was outside, J.W. saw the van run into the garage. J.W. then left along with A.O., the minor, and others. J.W. said he saw a black Suburban or Expedition drive by and stop in the street. The occupants were talking to someone, but J.W. did not know who they were or what was said. The vehicle drove off because the police were coming. J.W. was 100 percent positive the minor was with him at the party, when they went outside, and when the van crashed into the garage. J.W. was 100 percent sure the minor was not in the black SUV.

DISCUSSION

The minor contends the evidence supporting the allegations of the petition charging him with assault, robbery and carjacking was insufficient as a matter of law. Specifically, he claims there was insufficient credible evidence identifying him as a perpetrator of the offenses. Thus, he claims the jurisdictional finding and the dispositional order must be reversed. We are not persuaded.

The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] Thus, the standard of appellate review as delineated in Peoplev.Johnson (1980) 26 Cal.3d 557, 562, is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

To warrant rejection of a witness testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness. [Citations.] [Citation.] (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; accord, People v. Franz (2001) 88 Cal.App.4th 1426, 1447.)

In this case the juvenile court, as trier of fact, stated that it did believe Gabriel Gonzalez. Because the juvenile court believed Gonzalezs identification of the minor as a perpetrator, he can prevail on appeal only by showing that Gonzalezs identification is a physical impossibility or that its falsity is apparent without resorting to inferences or deductions. (In re Cheri T., supra, 70 Cal.App.4th at p. 1404; People v. Franz, supra, 88 Cal.App.4th at p. 1447.)

The minor does not attempt to show physical impossibility or falsity that is apparent without resort to inferences or deductions. Instead, he simply argues that Gonzalezs identification was tainted, first by his own physical injuries; then by Officer McMahons failure to stop and identify the suspect who was observed en route to the field show-up; and, lastly, by Gonzalezs discussion of the matter with Jesse before making an identification. Whether viewed singly or in combination, these three factors do not show that it was impossible for the minor to have perpetrated the attacks. At most, the factors allow an inference or deduction that Gonzalez misidentified the minor, first because Gonzalez had been seriously injured; second because Gonzalez inadequately considered the suspect for whom the officer did not stop; and third because Jesse persuaded Gonzalez to identify the wrong person. None of these inferences or deductions warrants rejection of Gonzalezs testimony. (In re Cheri T., supra, 70 Cal.App.4th at p. 1404; People v. Franz, supra, 88 Cal.App.4th at p. 1447.)

In any event, the record refutes the minors argument that the identifications were fundamentally flawed and unreliable, simply because Jesse and Gonzalez conversed before making their identifications. Gonzalez testified that the conversations concerned men they did not recognize as suspects and therefore did not identify. There was no discussion regarding the identifications of the minor and K.W., whom Jesse and Gonzalez both recognized. Gonzalez testified that Jesses presence in the car affected his identification of the minor [n]ot at all.^[7] Thus, the discussions were not causally related to Gonzalezs identification of the minor. His assertion the procedure was so overly suggestive that it resulted in a denial of due process (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1162-1163) has no merit.

The minor contends the evidence submitted in corroboration of Gonzalezs identification was neither credible nor of solid value. It is not necessary to consider this argument at length. Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. (Evid. Code, 411; see People v. Cuevas (1995) 12 Cal.4th 252, 262; People v. Scott (2002) 100 Cal.App.4th 1060, 1064.) As the juvenile court concluded and expressly stated, Gonzalezs testimony by itself is sufficient to prove the identification.

In any event, the juvenile court acknowledged K.W. by himself is not a trustworthy individual. However, the court chose to credit K.W.s identification of the minor, in part because K.W. correctly named Mike Earl as one of the perpetrators even though he could not have known that the only fingerprint recovered from any of the cars belonged to Earl. The court also credited K.W. in part because he did not assert the minors guilt until K.W. also acknowledged his own guilt, thus enhancing his credibility. We reject the minors claim that K.W.s testimony could never be relied on by a reasonable trier of fact.

The minor lastly claims the observation of him in the vicinity of the stolen SUV provided virtually no corroboration of solid value. It is sufficient to note that our analysis is not dependent upon that observation. The juvenile courts jurisdictional finding is supported by substantial evidence. (In re Jose R., supra, 137 Cal.App.3d at p. 275.)

DISPOSITION

The orders of the juvenile court are affirmed.

NICHOLSON , J.

We concur:

SCOTLAND , P.J.

DAVIS , J.

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^[1] Jesse M. described his ethnic background as Mexican. Gonzalez described himself as Hispanic. The trial court described both victims as Hispanic.

^[2] En route to that location, Officer McMahon drove past an individual whom both Jesse and Gonzalez believed to have been involved in the carjacking. McMahan did not believe that the victims were certain in their identification and did not stop. That person was never detained.

^[3] Nothing in this opinion should be understood as endorsing or condoning the joint viewing procedure that was used in this case.

^[4] Jesse explained that when they viewed one subject, Gonzalez thought that he may have been involved but Jesse did not. At that point, Gonzalez changed his opinion from yes to no.

^[5] Jesse identified two photographs as pictures of the minor wearing the same clothing that he wore on the night of the incident. Jesse later testified that the minors hairstyle as it appeared at the hearing was different from that depicted in the photographs.
Gonzalez identified the two photographs as pictures of one of the attackers. The photographs were received into evidence without objection.

^[6] Jesse identified four photographs of K.W. as pictures of the same person and as one of the persons who had attacked his uncle. Gonzalez also identified the photographs as pictures of one of the assailants. The photographs were admitted into evidence without objection.

^[7] This record refutes the minors argument, based on People v. Nation (1980) 26 Cal.3d 169, that it is unclear whether the two witnesses could have independently identified him. (Id. at p. 180.) Gonzalezs testimony that Jesses presence affected him [n]ot at all makes plain that he could have produced an independent identification.