In re Dominique C.

Filed 7/24/07 In re Dominique C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant, a minor, appeals from jurisdictional and dispositional orders entered after the juvenile court found defendant had committed misdemeanor battery (Pen. Code, 242)[1] and grand theft from the person of another ( 487, subd. (c)).[2]

We affirm.

Factual/Procedural Background

On February 10, 2006, the Napa County District Attorney filed a supplemental juvenile wardship petition alleging that on January 23, 2006, defendant had committed a second degree robbery of C.H. ( 211) and a misdemeanor battery of A.H. ( 242).

The allegations arose out of a January 2006 incident, during which A.H., a high school student, was attacked by several other girls while walking home from the store with her sisters. The girls were in a car, driven by someone else. They drove by the three sisters, parking around the corner. Two girls from the car approached one of the sisters, asking if she was A.H. and what school she attended. After receiving the response that the sister was indeed A.H., the girls went back to the car and a third girl approached. A.H. knew the third girl, whom she identified as V.R. V.R and A.H hugged. A.H.s sisters walked away. A few moments later, A.H. was attacked by two of the other girls from the car, while V.R returned to the car and watched.

A.H. called out to her older sister, C.H., who turned back to see A.H. being chased by the two girls. C.H. went back and began to fight the girls. At some point, a girleither one of those whom C.H. was fighting or a third girl (but not V.R.)grabbed C.H.s purse, which had fallen to the ground during the fight. C.H. went after the purse, and ended up trying to tug it out of the hands of a girl who by that time apparently was attempting to get back into the car. The girl kicked at C.H. The girl either was able to get the purse, or the purse fell to the ground and another girl grabbed it. All four girls, including V.R., left in the car.

C.H. sustained a cut lip and a blackened eye as a result of the fight. She never recovered her purse.

None of the sisters knew any of the girls involved except for V.R. A police investigation led the police to four girls: V.R., L.M., K.S. and defendant. Each admitted to the police she had been present at the incident, but each gave a slightly different account of what had occurred. Defendant stated that K.S., V.R. and L.M. had picked her up at a Jack In The Box restaurant. They were driving around and saw three females walking down the street. V.R. knew one of the females as A.H., and started to speak with her. The next thing defendant knew, V.R. and A.H. were fighting. Defendant said she and K.S. attempted to break up the fight, and one of the sisters hit her. Defendant and her friends got back into the car and drove away.

The court, after hearing the evidence, including defendants statement and the statements taken from the other girls, found each girl guilty of battery. The court also found each guilty of grand theft of the person ( 484), as a lesser included offense to second degree robbery. The court explain it was not convinced beyond a reasonable doubt all of the girls acted with the intent to aid and abet a robbery, but was convinced beyond a reasonable doubt all of them knew C.H.s purse had been stolen and either had aided and abetted in taking the purse or acted as accessories after the fact.

The court ordered a maximum period of confinement of 10 months as to the Alameda County offense (see fn. 1, ante) and the battery, adopting the probation officers recommendation that defendant be placed in foster care, and also ordering defendant committed to juvenile hall for a period of 92 days, with credit of 62 days for time served. The court later ruled the grand theft count would be reduced to a misdemeanor, but did not change the period of confinement.

Discussion

I.

Codefendants Out-of-Court Statements

Defendant contends the juvenile court erred by considering the statements of the other girls in determining defendant had committed a battery, asserting the statements were inadmissible hearsay and also that their admission violated her Sixth Amendment right to confrontation.[3] The People concede error, but contend it was harmless. We agree that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) If the statements of defendants companions are not considered for any purpose, the evidence is that defendant was in a car with an unknown driver and three acquaintances or friends who were cruising around. It appears there was some kind of a plan to attack A.H., using V.R. as decoy. At least two girls other than V.R. were actively involved in that plan, approaching A.H. to ascertain she was who they thought she was, and later attacking her after her sisters moved away. Defendant herself admitted she was involved in the fight with C.H. Although she claimed she was just trying to break up a fight between A.H. and V.R., the court reasonably believed the evidence that V.R.s companions were the aggressors. As defendant admitted she was involved in the altercation, she effectively identified herself as one of A.H.s attackers. The evidence, irrespective of the statements of defendants companions, established defendant was one of the girls who attacked A.H.

II.

Permitting Prosecution to Reopen its Case-in-Chief

During the prosecutions examination of the officer who took the statement from defendant, defense counsel objected to a line of questioning on the grounds there had been no identification yet in court as to who [the officer had] talked to. The court instructed the prosecutor to establish a foundation, after which the prosecutor elicited testimony that the officer had gone to a residence she believed to be defendants home, that she saw a young woman on the street who identified herself as having defendants name, and who was five feet two inches tall and had black hair and brown eyes. Defense counsel renewed her objection. The court then stated the prosecutor described someone who appeared of approximately the same description as your client, and the date of birth I note in the file. And Ill take judicial notice of [defendants] date of birth from the pleadings in the case file is the same asso I think that that shifts theif theres some question about who the officer was talking to, I think theres enough foundation to shift the burden over to you, if you feel that it wasnt your client, to establish that.

Later, after the prosecution rested, and after defense counsel asked it be made quite clear that the People have rested, counsel moved to dismiss the case against defendant, pointing out that there had been no identification of the girl sitting next to counsel in court as the girl involved in the crimes. The prosecutor explained she had misunderstood the situation and earlier discussion which, she thought, had established to the courts satisfaction defendants identity as the girl who had given the statement and had been involved in the crimes. The prosecutor requested leave to reopen her case-in-chief to put on evidence that the girl in court was the girl accused of the crimes, noting defendants probation officer was already in court and would be able to identify her. The court granted the request over the objection of defense counsel. The probation officer then identified counsels client as the girl bearing the name of the person whose statement had been taken by the police officer.

Defendant contends the juvenile court abused its discretion by allowing the prosecutor to reopen her case in chief. As defendant acknowledges, the courts decision finds support in People v. Goss (1992) 7 Cal.App.4th 702 (Goss), where it was recognized a court always has discretion to allow the prosecution to reopen after a motion to dismiss so long as the court is convinced that the failure to present evidence on the issue was a result of inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant].  (Id. at p. 708, citing People v. Ceja (1988) 205 Cal.App.3d 1296, 1304 (Ceja).) In light of these principles, the juvenile courts decision to allow the prosecution to reopen its case cannot in any way be seen as an abuse of discretion.

Defendant contends, however, that reopening the case to allow the prosecution to introduce additional evidence after it has rested is inconsistent with the reasoning and holding of the court in People v. Belton (1979) 23 Cal.3d 516. In that case, the defendant moved for an acquittal after the prosecution had rested. The trial court summarily denied the motion, the case continued and the defendant was convicted. (Id. at p. 519.) The Supreme Court found the prosecutions evidence, alone, insufficient to sustain a conviction, holding the defendant was entitled to an acquittal at the time he filed the motion. (Id. at pp. 526-527.) One point considered by the court was the contention the defendants motion to acquit should have included a statement of specific grounds. The court disagreed, reasoning, in part, that the effect of such a procedure would be to force a defendant to choose between: (1) specifying the defects in the prosecutions case, thereby affording the prosecutor an opportunity to seek to reopen the case in order to cure such defects; (2) making no motion and resting, thereby sacrificing his right to present a defense for fear that later evidence might cure the defects in the prosecutions case; or (3) making no motion, thereby waiving the right to challenge the prosecutions case-in-chief, and proceeding to present a defense. Forcing a defendant to elect among these alternatives would deny him the intended protection of [the statute conferring power on a defendant to move for an acquittal]. Further, to require a defendant to state specific grounds in support of the motion for acquittal would place the burden upon him to point out to the prosecutor, as well as to the court, the gaps in the prosecutions case. Such a requirement would come perilously close to compelling a defendant to aid in his own prosecution and would lessen the prosecutors burden to prove each and every element of the case beyond a reasonable doubt. (Id. at pp. 521-522.)

Defendant argues the same reasoning applies here, essentially claiming that unless a bright line rule is adopted to prevent a prosecutor from reopening the case-in-chief after resting, there is a risk that by intentionally or inadvertently stating the basis for a motion to dismiss or for an acquittal, defense counsel will become an unwitting agent in his or her own clients conviction, effectively reducing the prosecutions burden of proof. Of course, allowing the prosecutor to reopen the case by no means guarantees that the prosecutor will be able to produce sufficient evidence to support a conviction; in that sense, at least, the prosecutors burden of proof is unaffected. In addition, irrespective of the concerns voiced by the Supreme Court in Belton, supra, 23 Cal.3d 516, the court clearly did not establish any kind of bright line rule that a trial court abuses its discretion by allowing the prosecution to reopen the case to cure some defect in the evidence. To the contrary, the court acknowledged the trial courts power to reopen the case so that the prosecution may cure some deficiency, viewing that power as part of the foundation for the conclusion a defendant should not be compelled to state the grounds for moving for an acquittal.[4]

We recognize the problem posed by defendant as well as the fear that the failure to adopt a bright line rule could mean attorneys representing defendants would be subject to accusations of ineffective assistance of counsel should the attorney intentionally or inadvertently reveal the grounds for a motion to acquit. The argument is troubling as it suggests the prosecution and defense of criminal offenses is a kind of game or contest between attorneys that could and should be won or lost through tactics designed to prevent the admission of relevant evidence. The purpose of a criminal trial is to determine whether a defendant is guilty or innocent, and the rules of criminal procedure have been developed to that end. In other words, the rules behind allowing a party to reopen its case are grounded in fairness, not in legal gamesmanship. While, under Belton, supra, 23 Cal.3d at pp. 521-523, a defendant cannot be compelled to aid the prosecution by pointing out deficiencies in the prosecutions case, it does not follow that stating the grounds for a motion to dismiss or for an acquittal will or should constitute the ineffective assistance of counsel simply because it might result in the introduction of additional evidence. In sum, we are satisfied that the question of whether or not to allow a party to reopen its case properly is a matter for the trial court charged with the duty to consider the reason for a partys failure to adduce the evidence in the first instance, the nature of the evidence at issue and the prejudice resulting to the other party should leave to reopen be granted. In addition, it should be emphasized that prejudice means something that affects the other partys ability to present its case, not prejudice resulting from being denied the benefit of the other partys inadvertence. (See Goss, supra, 7 Cal.App.4th at p. 707, and Ceja, supra, 205 Cal.App.3d at p. 1304.)

Defendant also reads Ceja as establishinga rule precluding trial courts from reopening cases to allow the prosecution to produce additional evidence on an issue that has been litigated. As defendant points out, the court in Ceja held, in part, that because the motion for an acquittal was not directed at an issue that had been litigated, there was no legal preclusion to the Peoples case being reopened. (Ceja, supra, 205 Cal.App.3d at p. 1304.) This language can be interpreted as ruling that a court may not reopen a case where the motion for acquittal was directed at an issue that had been litigated. That interpretation is inconsistent with the Belton courts assumption that the trial court has the power to reopen a case to allow the prosecution to cure a deficiency identified by a defendant seeking acquittal. (Belton, supra, 23 Cal.3d at p. 521.) We agree with the reasoning of the court in Goss that such an interpretation is at odds with established law that the stage the proceedings have reached when the motion is made is but one factor for the trial court to consider. (Goss, supra, 7 Cal.App.4th at pp. 707-708, citing People v. Rodriguez (1984) 152 Cal.App.3d 289, 295.)

In sum, the ultimate question simply is whether the juvenile court abused its discretion by reopening the case to allow the prosecution to produce additional evidence. The prosecutions failure to produce the evidence before resting clearly was based on inadvertence or mistake and not on an attempt to gain some tactical advantage. There was no delay of any significance as the prosecutor was able to elicit the missing evidence from a witness who was already present in the courtroom. Defendant suffered no prejudice by the introduction of the evidence other than being denied the benefit of the prosecutors inadvertence. The court did not abuse its discretion in allowing the prosecution to reopen its case-in-chief.

III.

Aiding and Abetting in Theft of Purse

Defendant contends the evidence does not support the finding she aided and abetted in the theft of C.H.s purse.[5] An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with the intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.).) Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. (Ibid.; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 (Lynette G).) It follows that on appeal, all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment or order. (Juan G.,at p. 5.)

In Lynette G., a teenaged girl, while in the company of three other teenaged girls, struck the victim and took her purse. The girls ran off after the victim called out for help. A short time later, police stopped four girls, one of whom was the defendant. It was undisputed that the defendant was not the girl who had struck the victim and taken her property. (Lynette G., supra,54 Cal.App.3d at pp. 1090-1092.) The appellate court found the evidence sufficient to convict the defendant of robbery on a theory of aiding and abetting. (Id. at p. 1095.)

In attempting to distinguish Lynette G. from the present case, defendant notes that the court in that case reasoned, in part, Although flight, in and of itself, may be explained by a desire merely to disassociate oneself from an unexpected criminal activity, the trial court was not required to adopt that view; it could, reasonably, have concluded that had Miss G.s flight been from fear of an unjustified charge of involvement, she also would have immediately disassociated herself from the other three girls. (Lynette G., supra, 54 Cal.App.3dat p. 1095.) Defendant points out that there is evidence in this case (in the form of the statements taken from the other girls) that defendant left the others after the driver dropped all four girls off at a McDonalds restaurant. The evidence, however, does not establish that defendant acted immediately to dissociate herself from the others. Moreover, unlike the defendant in Lynette G., who had not personally engaged in any criminal conduct, the evidence here is that defendant was actively involved in the attack on A.H. and the fight with C.H. It is not at all unreasonable to infer from defendants active participation in the criminal activity of her companions that she intended to, and did, aid and abet her companions in the related criminal act of taking C.H.s purse.

In conclusion, the evidence supports the finding that defendant aided and abetted in the theft.

Conclusion

The jurisdictional and dispositional orders are affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Defendant also had been subjected to proceedings in Alameda County, where she admitted to an allegation of soliciting an act of prostitution. ( 647, subd. (b).) The Alameda County court set a maximum period of confinement for that offense of six months, and transferred the matter to Napa County. Defendant makes no appellate arguments relating to the Alameda proceedings.

[3] Evidence Code section 1220 codifies the hearsay rule, generally making inadmissible evidence of statements made other than by a witness while testifying at the hearing. Defendant claims the court incorrectly found the statements to be admissible under the exception to the rule for statements made by coconspirators. Evidence Code section 1223 states the exception, providing that a statement is not made inadmissible by the hearsay rule if: (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the courts discretion as to the order of proof, subject to the admission of such evidence. The statements at issue here were made to police sometime after the battery and theft had occurred. In addition, even if a statement falls within some exception to the hearsay rule, where, as here, it is the result of a police interrogation, it is admissible only when the declarant is unavailable and the defendant has had a prior opportunity to cross-examine; i.e., where the defendants Sixth Amendment right to confrontation has been preserved. (Crawford v. Washington (2004) 541 U.S. 36, 50-53, 57-59, 68-69.)

[4] It has been suggested that a better means of addressing the Supreme Courts concerns might be to require the defendant to specify the grounds for the motion to acquit, but to also deny the People the right to reopen for any reason so specified. In that way, the trial court will not be required to divine the grounds for the motion without aid of defense counsel, and there would be no reason for defense counsel to create grounds for reversing a conviction by secreting the basis for the motion in the hopes it will be overlooked by the trial court. (See People v. Martinez (1982) 132 Cal.App.3d 119, 129-130 & Ceja, supra, 205 Cal.App.3d at p. 1303.) As the courts in the cited cases recognize, this approach, while perhaps better, does not reflect the actual state of the law.

[5] Neither party addresses the juvenile courts finding that the girls in the car might be criminally liable as accessories after the fact, even if not as aiders and abettors.