In re Joseph R.

Filed 7/26/07 In re Joseph R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Rudolph A. Diaz, Judge. Affirmed.

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Ann Krausz for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.

Joseph R. appeals from the order of wardship entered following a finding that he committed misdemeanor vandalism. He contends that the evidence was insufficient to support the finding. We affirm.

BACKGROUND

On the afternoon of November 7, 2005, off-duty Los Angeles County Deputy Sheriff Kenneth Felix was driving on Via Acosta in Montebello when he saw the minor using a marker to write graffiti on a utility pole. The minor was in the company of one or two other youths. Felix slowed down and asked the minor what he was doing. The minor did not acknowledge Felix. Felix then used his cell phone to contact the Montebello police and followed the minor until Montebello Police Officer Alfred Martinez arrived.

Felix further testified that he saw a marker in [the minors] hand and actual markings being done by the minor. He then saw the minor put the marker in what Felix described as a school or book bag. A police report of the incident contained Felixs statement that he never lost sight of [the minor]. Felix testified that the report was accurate. But when asked at the adjudication if he ever lost sight of the minor, Felix responded, Probably when there was traffic coming on. Garfield and Via Acosta. I was watching the traffic.

Officer Martinez detained the minor, who was still holding the bag that Felix described. No marker was found in the bag, on the minors person, or in the immediate area. In addition, there were no marker stains on the minors hands. Nevertheless, Martinez saw graffiti on the subject utility pole.

DISCUSSION

The minor contends there is no real evidence that [he] possessed a black marker, or any marker, and that [w]ithout the marker, there is no corroboration to Felixs assertion that [the minor] defaced the pole. But, as Felix was not an accomplice, there was no requirement that his testimony be corroborated. And the real evidence that the minor possessed a marker was supplied by Felixs testimony that he saw the minor with a marker in his hand writing on the utility pole. It matters not what the minor might have done with the marker when Felix was not looking.

The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] . . . [O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record . . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial . . . . [Citation.] []  Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value [citation], it must be ever cognizant that it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends . . . . [Citations.] Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witnesss credibility for that of the fact-finder. [Citations.] (People v. Barnes (1986) 42 Cal.3d 284, 303304.)

Guided by this standard, we conclude the juvenile courts finding that the minor committed vandalism was supported by substantial evidence.

DISPOSITION

The order under review is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.