In re Ralph M.

Filed 7/24/07 In re Ralph M. CA2/8

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Richard E. Naranjo, Judge. Reversed.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Respondent.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

We issue this opinion after granting respondents petition for rehearing to our previous unpublished opinion in this case.

The juvenile court found that appellant Ralph M. came within the provisions of Welfare and Institutions Code section 602, for committing first degree residential burglary. It committed him to the camp community placement program for six months.

Prior to our order of rehearing, Ralph raised these issues: (1) the juvenile court sustained the petition without finding that the charges were proved beyond a reasonable doubt, (2) his predisposition credits were improperly computed, and (3) some of the probation conditions are improper.

In our previous opinion, filed on February 27, 2007, we reversed on the ground that the juvenile court found that it had a reasonable doubt about guilt, but then sustained the petition, even though there was insufficient evidence that appellant was the perpetrator of the burglary.

On March 13, 2007, respondent filed the petition for rehearing. The grounds were essentially that our opinion (1) was based on insufficiency of the evidence, which was not briefed (Gov. Code, 68081), and (2) did not consider whether appellant waived any issue regarding what the juvenile court said by not objecting at that time.

On March 27, 2007, respondent submitted a document entitled, Respondents Supplement to Petition for Rehearing (respondents supplemental pleading). That document included a declaration, under penalty of perjury, from the Honorable Richard E. Naranjo, who presided at the adjudication proceedings below. Judge Naranjos declaration states that there is a typographical error in the reporters transcript, as it indicates that he said,  I do find it rises to the level of a reasonable doubt,  when his actual words were, I do not find it rises to the level of a reasonable doubt.

On March 29, 2007, we ordered the filing of respondents supplemental pleading, granted respondents petition for rehearing, and asked for supplemental briefing on the issue of the sufficiency of the evidence. Both sides have provided that briefing. Appellant also repeats the issues that were raised prior to our order granting rehearing.

We resolve this case based on the record and the sufficiency issue, and do not address certain other issues that have been raised by appellant after our order granting rehearing. Applying the applicable standard of review, we reverse because the record does not contain substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find [appellant] guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053; In re Winship (1970) 397 U.S. 358, 368.)

FACTS

1. Prosecution Testimony

On January 18, 2005, appellant had resided for one week at a group home for boys, on Tally Street in Lancaster. The home of the F. family was on Tally Street, immediately to the north of the group home. The two lots were separated by a concrete block wall. The fronts of both homes faced east. Their backyards ended in concrete walls at the properties west ends. 15th Street East was on the other side of the back walls. All of the walls were five or six feet high. The distance from the back patio of the group home, across its backyard, to the back wall, was about 30 feet. There was shrubbery around the back wall of the F. home. The sandy soil in the backyards of both houses was moist, due to prior rainfall.

A staff member of the group home was supposed to be watching its residents at all times. There were usually two staff members on duty. On this particular morning, only one staff member, Keenan Rose, was present, because the other staff member, Christopher Daniels, had taken one of the residents to court. Rose did not usually work at that location. He was there temporarily, for just that day.

Around noon, Rose gave lunch to the three juvenile residents who were present, appellant, Miguel, and Kevin. After lunch, Rose needed to use the restroom. He did not tell the boys exactly what [he] needed to do in the restroom. With Roses permission, appellant went into his room, Miguel went into his room, and Kevin continued doing his laundry. Rose testified that he stayed in the bathroom for seven to ten minutes, during the timeframe of 12:40 to 1:00 p.m. When he came out of the bathroom, he saw Miguel and appellant arguing. Appellant told Miguel not to say anything about what they were talking about. Miguel said he was not going to say anything.

Around 12:45 p.m., while Rose was in the bathroom, the burglar alarm went off at the F. home. The alarm company contacted Mrs. F. and the police. Sheriffs Deputy Steve Lehrman immediately went to the F. home. Mrs. F. arrived there from work, about 30 minutes later. The Plexiglass on the top portion of a living room window was shattered. That window was on the north side of the F. home, the side furthest from the group home. The remainder of the window opening was occupied by a window-mounted air conditioning unit. On top of that unit, there was a muddy footprint and some loose coins. Inside the house, on a bench under the same window, there was another clear muddy footprint. Additional blurred footprints led along the living room floor, up a flight of stairs, into the master bedroom. The house had not been ransacked. Two jars of coins were missing from the master bedroom. Mrs. F.s daughter discovered later that day that her laptop computer was missing from her bedroom. The missing property was never recovered.

As Deputy Lehrman investigated the scene, he observed that muddy footprints began below the broken window and continued through the backyard to the back wall. He then looked over the wall separating the F. home from the group home, and noticed that both of the homes had similar footprints in their backyards. He walked to the group home and knocked on the door. The staff person Daniels had returned from court; Rose had left for the day. Daniels gave Lehrman permission to check the backyard of the group home.

Lehrman entered the group home and walked by appellant, Miguel and Kevin, who were watching television in the family room area. Lehrman noticed that appellant was wearing black Nikes. Walking into the backyard, Lehrman verified that the prints there were like the ones at the F. home. They led from the west wall at the end of the yard towards the group homes back patio, a distance of about 30 feet. There was one set of clear prints. There also were a variety of other prints in the patio area, including prints at the wall that separated the two houses.

Daniels told Lehrman that the footprint was made by a Nike Air Force One shoe, as he wore that type of shoe himself. He also told Lehrman that appellant habitually wore that type of shoe, and had been wearing such shoes just before Lehrman arrived. Lehrman went into the house to contact appellant. Kevin and Miguel were still watching television. Appellant had gone to his bedroom. He came out of it wearing a different pair of shoes. These shoes were white, lacked laces, and had their tongues hanging out. Lehrman asked appellant where the shoes were that he had just been wearing. Appellant told Lehrman the shoes were in his bedroom closet. He led Lehrman there. Reaching into the closet, appellant pulled out another pair of shoes, which still were not the ones he had been wearing when Lehrman entered the house.

Lehrman looked into the closet and saw those shoes. Examining them, he observed that they were hot and moist on the inside, and had the same tread pattern as the prints in the backyard. Lehrman asked appellant if those were the shoes he had previously been wearing. Appellant answered, yes. He also said he took the shoes off because they were tight and uncomfortable. Lehrman asked appellant if he had been outside in the yard that afternoon. Appellant said no. He added that they were not allowed to go outside, as that was kind of an off limits area.

Lehrman took appellant and one of the shoes outside. He placed the shoe next to a shoeprint in the group homes backyard, and next to shoeprints in the victims yard and on the air conditioning unit. In his opinion, the shoeprints matched the tread of the shoe he was holding. He asked appellant if he was sure that he had not been outside. Appellant then changed his story. He said he had been smoking, and the shoeprints in the group homes backyard were his shoeprints. Lehrman asked appellant why the shoeprints led from the wall at the back of the yard to the patio. Appellant said that two male black juveniles had walked by earlier and made some comments, so he and Kevin had walked to the back wall to see what they were doing.

Miguel testified that he saw appellant go outside when Rose went into the bathroom. Miguel then saw appellant and Kevin talking, near the back wall. After about five minutes, appellant and Kevin came back into the house. They were not carrying anything. Miguel then argued with appellant. Miguel did not remember what they argued about, but he recalled talking about it with the prosecutor and Rose in the prosecutors office. Miguel admitted that he was on probation to the juvenile court.

2. Defense Testimony

Reverend Paul Shively, the director of a different group home, testified that Rose worked for him from August 2003 through the summer of 2004. Roses employment was terminated for two reasons. One was that Rose falsified records. The other was that Rose gave the personal belongings of two minors who had been arrested to children in the neighborhood, instead of securing the possessions.

The defense was based partly on cross-examination of Rose and Daniels. They testified that minors who were in the backyard without permission or who were caught smoking might be punished with extra chores or by being excluded from an outing. Smoking in the backyard could result in preparation of a serious incident report, which would be sent to the minors probation officer. Even so, the boys were sometimes caught smoking.

Kevin was the chief defense witness. He testified that, before Rose went into the bathroom, Rose watched through the window of the house while Kevin and appellant smoked cigarettes near the back of the backyard. They threw the butts in the trash can. Kevin was barefooted. Appellant wore black Air Force Ones. During the 20 minutes they were outside, two black people walked by, on the other side of the wall. One of those people threw a gang sign. Kevin told the person to come here. The man ignored him. The men were walking around as if they didnt know the neighborhood and then they just sped off.

Kevin further testified that Daniels would have made an incident report about the smoking, but he was not present, and Rose did not write it up. Appellant did not jump over the wall, go to the neighbors home, or return from that home with a jar of change or a laptop computer. Kevin and appellant then came inside at Roses request. While Rose used the bathroom, Kevin did his laundry. He went in and out of his room, and finally lay down there. After 35 minutes, he heard appellant and Miguel arguing. Kevin assumed the argument concerned whether Miguel would report the smoking incident.

On cross-examination, Kevin admitted that he was on felony probation for battery with serious bodily injury, felony vandalism, and trespass.

3. The Arguments of Counsel

The prosecutor argued that appellant burglarized the F. home while Rose was in the bathroom. He focused on the footprint evidence, appellants change of shoes, and appellants lies about which shoes he had been wearing. The prosecutor recognized that the timeframe [was] definitely the trickiest part. He maintained that there was sufficient time for appellant to commit the crime, as Rose did not watch appellant for between ten and 30 minutes.[1]

Defense counsel argued that appellant could not have known how long Rose would be in the bathroom, and did not have time to commit the crime. Also, he maintained that the lies about the shoes were explained by appellants desire to avoid punishment for smoking in the backyard.

4. The Juvenile Courts Ruling

The juvenile court found that appellant went to the F. home via the wall that separated the two homes, burglarized the F. home, and returned via the back walls at the end of both properties backyards. It further found that appellant had time to commit the crime, as he would know what Roses habits were, during the routine bathroom break [Rose] took every day . . . .

DISCUSSION

Having carefully considered the record and the supplemental briefing, we conclude that there is no substantial evidence that appellant was the person who burglarized the F. home. We are surprised by the juvenile courts statement that appellant would have known how long Rose would be in the bathroom, as this was a routine bathroom break he took every day . . . . There was no such evidence. Rose testified that he did not usually work at that house, and only worked there that one day. Because appellant was not familiar with Roses habits, and Rose did not say what he planned to do in the bathroom, there is no way that appellant could have known how long Rose would be in the bathroom. Therefore, it makes no sense that appellant would rush out of his room to commit a burglary at the house next door, while Rose was in the bathroom.

Also, the juvenile court overlooked Roses testimony that he was only in the bathroom [b]etween seven to ten minutes. That time interval was long enough for appellant to break the rules by going outside briefly with Kevin, as Miguel testified. However, it was not enough time for appellant to jump over the wall between the houses, break a window on the far side of the F. home, run upstairs, steal coins and a laptop computer from two different bedrooms, hide the loot, run through the backyards and over the back walls of both houses, return to the group home, and go inside of it, before Rose came out of the bathroom. This is one of those relatively rare instances when the evidence, i.e., the inferences, on which the People rely are inherently improbable, and when the evidence is therefore not sufficient to support the judgment. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 366, pp. 415-417.) It is inherently improbable that appellant could have committed this particular burglary in seven to 10 minutes.

Respondent points out that the juvenile court was free to believe part of Roses testimony and disbelieve his testimony about the length of time he was in the bathroom. (See People v. Rankin (1959) 169 Cal.App.2d 150, 162.) Indeed, Roses testimony on that point could have been self-serving, as he was supposed to be watching the residents of the group home, and might not want to admit that he left them unsupervised for a long period, if they were actually unsupervised for a long period. However, Rose provided the only substantial evidence about when the crime could have occurred, as he said the boys were always in his sight, except for the seven to ten minutes that he was in the bathroom. That time period was also partly corroborated by the prosecution witness Miguel, who testified that when Rose went into the bathroom, appellant and Kevin went outside, talked in the backyard for [l]ike five minutes, and then returned to the house.

Respondent maintains that there was time for appellant to commit the burglary, because Rose actually was in the bathroom for 35 minutes. Respondent arrives at that time period by combining: (1) Roses testimony that he sent Kevin to complete his laundry before he went into the bathroom, and (2) Kevins testimony that he spent 35 minutes doing his laundry. The flaw with that argument is that the laundry room was in another part of the house, and Kevin spent the 35 minutes in the laundry room and in his bedroom, so he was in no position to know how long Rose was in the bathroom. We realize that appellant changed his shoes, lied about which shoes he had been wearing, and also lied about whether he had been outside. Those facts are not sufficient to establish that appellant was guilty of the burglary, because appellant had something else to hide: the fact he had been outside smoking. Similarly, the weight that might be given to the footprint evidence is reduced by the fact that Nike Air Force Ones are a common type of shoe, and there is no evidence that appellants shoe size was unusual.

Respondent maintains that the facts here are analogous to those of People v. Alvarez (1963) 222 Cal.App.2d 748. We do not agree, as there was no problem with the time period for the crime in Alvarez, and it contained much stronger evidence of guilt, including the defendants apartment key inside a ransacked closet of the burglarized house, and the victims earring on the defendants porch.

We hold that, due to the weaknesses in the evidence that was presented, a reasonable trier of fact would not have found that the prosecution sustained its burden of proving beyond a reasonable doubt that appellant was guilty. (People v. Kunkin (1973) 9 Cal.3d 245, 250.) We therefore reverse.

DISPOSITION

The order sustaining the petition is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

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[1] It appears the prosecutor confused the time frame Rose gave for the bathroom visit with the actual time Rose said he spent in the bathroom.