In re Anthony C.

Filed 7/18/07 In re Anthony C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, S. Charles Wickersham, Judge. Affirmed in part with directions; reversed in part.

The juvenile court made true findings that Anthony C. committed robbery, burglary, and petty theft, and possessed alcohol in a public place. (Pen. Code,  211, 459, 484; Bus. & Prof. Code,  25662, subd. (a).) The court committed Anthony to Camp Barrett for a period not to exceed 270 days.

On appeal, Anthony concedes substantial evidence supports the court's findings on all four counts. He contends that we must nonetheless reverse the judgment because the court's oral explanation of its reasoning does not logically support the court's factual conclusions. We reject this contention. Viewing the court's comments in context, the court's oral explanation is consistent with its factual and legal determinations.

Anthony also contends the court's finding on the petty theft count must be reversed because petty theft is a lesser included offense of the robbery count. As the Attorney General concedes, this argument is correct. Accordingly, we reverse the judgment on the petty theft count. We affirm the judgment on all other counts.

FACTUAL SUMMARY

At about noon, two young men walked into a gas station store in San Marcos and each grabbed two 12-packs of beer. The individuals looked too young to buy beer. One of the juveniles (later identified as Gabriel G.) walked out of the store without paying for the beer. The store manager followed him and asked him what he was doing, but Gabriel ignored the manager.

The store manager then turned around and saw the second individual coming towards him. At trial, the store manager identified this individual as the appellant (Anthony). As the store manager was attempting to signal Anthony to stay in the store, Gabriel threw one of the 12-pack beer cartons at the manager's back. At that point, the store manager became scared and let the young men go because he "didn't want to get involved any further."

Shortly thereafter, a witness told the store manager the address of the apartment complex where he could find the two young men, and the store manager relayed this information to the responding sheriff deputies. The store manager also described the vehicle used by the suspects and a store employee gave a partial license number to the deputies. The store manager additionally described the suspects and their clothing. He said one young man was wearing a striped multicolored shirt and the other was wearing a gray hooded sweatshirt.

At about 1:30 p.m. that day, Deputy Sherriff John Buckley went to the apartment complex described by the witness, which was less than one block from the gas station store. Several deputies had arrived at the complex before him. As he drove up, Deputy Buckley saw Anthony standing by a vehicle that matched the store manager's description and the license number. Gabriel then came out of apartment unit No. 6 and said the vehicle belonged to his mother. Anthony was wearing a grey hooded sweatshirt and Gabriel was wearing a striped multicolored shirt, both matching the store manager's description of the suspects' clothing. The deputies spoke with several other juveniles at the scene, who told them that Gabriel and Anthony had gone to get beer. None of these other juveniles was wearing a grey sweatshirt.

After waiving his Miranda rights, Anthony denied involvement in the incident. Anthony said he left his home in Escondido around noon with his cousin and that when he arrived at apartment unit No. 6, the beer was already at the apartment. The officers conducted a search of apartment unit No. 6 and found several 12-pack beer cartons that matched the brand of beer that had been taken from the gas station store.

Several months later, the store manager identified Anthony in a photo lineup as one of the individuals who took the beer. The store manager also identified Anthony at trial. The store manager said he stood about one or two feet away from Anthony during the crime and was able to see him clearly.

Anthony presented an alibi defense. His cousin Jorge testified that on the day of the robbery, Anthony spent the morning with Jorge and Jorge's brother Raul in Escondido at Anthony's home and at a swap meet. Jorge said he dropped off Anthony and Raul at Raul's residence in San Marcos at about 12:45 p.m. Raul lived close to the apartment where the beer was found (apartment unit No. 6). Raul testified that after the three cousins went to the swap meet and Anthony's house, they arrived at Raul's house at about 1:15 p.m., and Raul and Anthony then walked to apartment unit No. 6. Raul said he had a beer at the apartment and then told Anthony to wait for him while he went to see his wife. Raul claimed that this was the only time since 10:00 a.m. that he had not been with Anthony.

At the conclusion of the evidence, the trial court found Anthony was one of the juveniles who took the beer cartons from the gas station store, and made a true finding with respect to each of the four alleged counts: burglary, robbery, petty theft, and possession of alcohol in a public place. (Pen. Code,  211, 459, 484; Bus. & Prof. Code,  25662, subd. (a).)

DISCUSSION

I. The Record Supports the Court's Findings

Anthony contends insufficient evidence supports the true findings "given the express stated reasoning of the juvenile court." (Capitalization omitted.)

Generally, "an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same standard applies in juvenile cases. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.) Anthony concedes that, under this well established appellate review standard, sufficient evidence supports the court's findings on each of the four counts. He contends, however, that we must reverse the judgment because the court's stated reasoning does not logically support the court's findings and shows the court did not find the prosecution met its proof burden. He focuses on a brief remark made by the trial court in the course of a lengthy explanation of its reasoning in which the court stated that although it found the case to be "difficult" and it "might have some trouble" with the case when viewing the testimony of the prosecution witnesses and cousin Jorge, "once I've heard the testimony of Raul . . . who I'm satisfied is not telling the truthI don't have any trouble." (Italics added.)

Anthony interprets the court's statement that it "might have some trouble" as the "equivalent of voicing a reasonable doubt" and contends the court erred in relying solely on its assessment of Raul's credibility to then find the proof burden was satisfied. The contention is unavailing.

Immediately after making the challenged comments, the court stated: "what's interesting about the whole [case] and it didn't occur to me right away, but after listening to twoof the cousins testify, the second cousin [Raul] adds con[text] to this whole series of events." (Italics added.) In other words, the court was explaining that although Jorge's testimony may have initially appeared to be credible, once Raul testified, the court recognized that Jorge's version of the events was not believable. We reject Anthony's argument that one witness's lack of credibility cannot diminish the credibility of another witness. A witness's testimony can logically affect the assessment of another witness's credibility if the testimony is related or pertains to the same event. For example, in this case, although Jorge may have appeared credible when he stated he dropped off his brother and cousin at Raul's house at 12:45, Raul's testimony that he was dropped off 30 minutes later and that Anthony was not welcome at Raul's home rendered Jorge's version less likely to be true.

Moreover, viewing the court's statements as a whole, the court made clear that its true finding as to Anthony's involvement in the crime was based primarily on the store manager's pretrial and trial identification of Anthony, which the court found to be "strong" and credible. The court stated that although the case was close, it was "going to go with the victim, who I found to be straightforward and honest and clear in his identification of the minor." The court further gave several specific reasons that it did not find the alibi defense convincing: (1) the chronology of events as related by both cousins did not make "any sense"; (2) the evidence showed there was no one else in or around apartment unit No. 6 that fit the victim's description of the second perpetrator (wearing a grey sweatshirt with a hood); and (3) the testimony of Raul was not believable because under his timeline he would have left apartment unit No. 6 when the deputies were watching the apartment, and the deputies testified convincingly that no one left the apartment at that time. These findings were consistent with the court's ultimate conclusion that neither alibi witness was credible.

We agree with Anthony that the rule of implied findings applicable to a substantial evidence review does not apply if an implied finding is contradicted by an express recital in the record. However, in this case, the court's express statements do not contradict its findings. Reading the court's remarks as a whole, the court did not find the prosecution met its burden of proof merely because one alibi witness was not credible. Substantial evidence supported the court's findings.

II. Dismissal of Petty Theft Count

Anthony contends the true finding on the petty theft count (count 3) must be reversed because petty theft is a lesser included offense of the robbery in count 1. The Attorney General concedes this error. We agree. Because petty theft is a lesser included offense of robbery (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351), the true finding on petty theft in count 3 must be reversed.

III. Possession of AlcoholCount

At the hearing the court made a specific factual finding that it found true the offense alleged in count 4, possession of alcohol by a minor. (Bus. & Prof. Code,  25662, subd. (a).) However, the court's minute order does not reflect this finding. We agree with the Attorney General this omission appears to be a clerical error, and we therefore order the court to modify the minute order to reflect the court's oral finding.

DISPOSITION

The judgment is reversed as to count 3 (petty theft; Pen. Code,  484). The court is ordered to modify the June 16, 2006 minute order to reflect its true finding on count 4 (possession of alcohol; Bus & Prof. Code,  25662, subd. (a)). The judgment is affirmed in all other respects.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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