In re Alex R.

Filed 9/6/07 In re Alex R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Judge.

Richard D. Runcie, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

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The court adjudged appellant, Alex R., a ward of the court (Welf. & Inst. Code,  602) after it sustained allegations charging him with felony arson (Pen. Code,  451, subd. (c)) and unlawful possession of a cigarette lighter (Pen. Code,  308, subd. (b)), an infraction. On September 28, 2006, the court ordered Alex to serve 6 days in juvenile hall and 31 days on house arrest. On appeal, Alex contends the court erred in: 1) designating his possession of drug paraphernalia offense a misdemeanor rather than an infraction; 2) imposing a 10 percent administrative fee on its restitution order; and 3) admitting certain hearsay statements. We will find merit to Alexs first two contentions and direct the court to correct the judgment accordingly. In all other respects we will affirm.

FACTS

At Alexs adjudication hearing, Madera County Sheriff Deputy Robert Mallet testified that on July 25, 2006, at approximately 12:48 p.m. he was dispatched to the location of a vegetation fire in Madera County. Mallet contacted one of the fire captains already on the scene and was told that the fire may have been caused by arson and that there were two witnesses, Gregg C. and Brian R. Mallet spoke to the witnesses and then took them to another location to wait for Fire Captain Greg Grizzell. Mallet walked along the road adjoining the fire and found a lighter and a glass pipe that appeared to have been used to smoke marijuana. He also found some shoe tracks and a piece of charred paper located approximately 50 feet from the above items.

Mallet took pictures of the evidence and after Captain Grizzell arrived on the scene, they took the two witnesses to look for two suspects. The group eventually stopped at a supermarket where Brian and Gregg pointed at two juveniles across the street, Brians brother, Alex, and Anthony C.,^[1]and identified them as the boys who had started the fire.^[2] Deputy Mallet then walked across the street, arrested Alex and Anthony, and transported them to the sheriff substation in Oakhurst where they were eventually turned over to Captain Grizzell.

Captain Grizzell testified that he determined from witness statements and physical evidence that the fire was caused by humans and had been started with a lighter found near the origin of the fire. At the substation Grizzell interviewed Anthony who told him that he started a fire by flipping matches into the grass. Although he and Alex put that fire out, Anthony lit a piece of paper which he dropped because it burned his hand and the paper started a second fire that Brian and Gregg put out. Alex then used the lighter to start a third fire.^[3]

Grizzell next interviewed Alex and asked him what happened. Alex replied that he used the lighter to start the fire and he and Anthony ran away. When asked why he started the fire, Alex said he did not know. Grizzell asked Alex about the marijuana pipe and Alex eventually admitted that it belonged to him.

Alex testified that Anthony lit a fire and then he used the lighter to start a tiny fire by the road which he put out with his foot. Anthony went up to Alex and said I wonder how fast it will burn. He then lit another fire and he and Alex ran away.

DISCUSSION

The Possession of a Cigarette Lighter Offense

Count 3 of the petition in this matter charged Alex with possession of a cigarette lighter, an infraction. However, at the disposition hearing the court referred to this offense as a misdemeanor even though it imposed the proper punishment for this offense. In view of the foregoing, Alex asks this court to direct the juvenile court to correct the minute order of his disposition hearing to reflect that his possession of a cigarette lighter offense is an infraction. Respondent agrees that the court erred in designating this offense a misdemeanor and that the minute order should be corrected. We also agree and will direct the court to correct the minute order for Alexs disposition hearing to show that the possession of a cigarette lighter offense is an infraction.

The 10 Percent Administrative Charge

At Alexs disposition hearing the court ordered him to pay $1,227.77 and an administrative cost recovery fee of 10 percent. Alex contends the court erred in ordering him to pay the administrative cost recovery fee because the above amount already included an 11.05 percent administrative charge in the amount of $127.14. Respondent concedes and we agree. Accordingly, we will strike the 10 percent administrative cost recovery fee the court ordered Alex to pay.

The Alleged Crawford^[4]Error

Alex contends that his testimony implicated him only in causing a fire away from the grass which he stomped out before it spread. He also cites Crawford v. Washington (2004) 541 U.S. 36, to contend the court erred in admitting the hearsay statements of the other juveniles that implicated him in starting the fire that got away and caused the monetary damages of $1,227.77 which Alex was ordered to pay in restitution. Alex further contends that introduction of this evidence was prejudicial because it was the only evidence implicating him in starting that particular fire. Alternatively, Alex contends that even if this court finds that he unlawfully started a fire, since the petition did not allege he was an aider and abettor to a specific fire the restitution order should be reversed. We will reject these contentions.

Under [Ohio v. Roberts[] [1980] 448 U.S. 56, 100 S.Ct. 2531], an unavailable witnesss hearsay statement could be admitted without violating the Sixth Amendment's confrontation clause if the statement bore adequate indicia of reliability-if it either fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. [Citation.] However, [in [Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177] the high court . . . reconsidered its ruling in Roberts, concluding that if the hearsay statement offered for its truth was testimonial in nature, its admission would violate the confrontation clause . . . unless the defendant had had a prior opportunity to cross-examine the now-unavailable declarant. [Citation.]

In Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, Crawford's wife Sylvia had been interrogated as a suspect in connection with Crawfords killing of the victim. At trial, Sylvia did not testify and the prosecution used her police statement to impeach Crawfords self-defense claim. The Supreme Court held this violated the confrontation clause because Sylvia's statement had been testimonial: Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would be released depend[ed] on how the investigation continues. [Citation.] In response to often leading questions from police detectives, she implicated her husband in [the victims] stabbing and at least arguably undermined his self-defense claim. [Citation.] We leave for another day any effort to spell out a comprehensive definition of testimonial. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. [Citation.] (People v. Saracglu (2007) 152 Cal.App.4th 1584, ____.)

Here, the statements from the three other juveniles come under the Crawford rule because they were elicited during police interrogations, there was no opportunity for Alex to cross-examine the juvenile declarants, and there was no showing by the prosecution that the declarants were unavailable. However, Alex waived any confrontation clause challenge to the introduction of their statements by his failure to object to their introduction on constitutional grounds in the juvenile court. (People v. Bergener (2003) 29 Cal.4th 833, 869.) In any event, even if this issue were properly before us we would reject it. In eliciting the statements at issue the prosecutor did not introduce them for their truth. Instead the prosecutor offered them only to explain the conduct of Deputy Mallet and Captain Grizzard. Absent evidence to the contrary we presume that that is all the court considered them for. (Evid. Code,  664 [It is presumed that official duty has been regularly performed].)

Moreover, even assuming that the court considered the three minors statements in violation of Crawford, any Crawford error was harmless.

[A]n aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 136.)

[I]n California the definition of a principal has historically included those who aid and abet [citation], and notice as a principal is sufficient to support a conviction as an aider or abettor. As stated in People v. Greenberg (1980) 111 Cal.App.3d 181, 188 . . .,

. . . one may be convicted of aiding and abetting without the accusatory pleading reciting the aiding and abetting theory so long as defendant is charged in that pleading as a principal to the substantive offense and thus receives notice of the charge against him. [Citations.] (People v. Garrison (1989) 47 Cal.3d 746, 776, fn.12.)

Here, even assuming that the court could not conclude from Alexs testimony alone that he started the large fire, it could nevertheless conclude from Alexs companionship with Anthony before and after the large fire was started and Alexs actions in starting one fire, that he aided and abetted the arson because he acted with knowledge of Anthonys unlawful purpose, he started a fire with the intent of encouraging Anthonys unlawful conduct, and his conduct encouraged Anthony to light the third fire that got away. Accordingly, we conclude that the court did not commit Crawford error, or alternatively, that any such error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is modified to reduce Alexs adjudication for possession of drug paraphernalia to an infraction and to strike the order requiring him to pay a 10 percent administrative fee on the restitution amount he was ordered to pay by the court. The trial court is directed to correct its paperwork accordingly. As modified the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.

^[1]Alex and Anthony were both 13 years old at the time.

^[2]This evidence was introduced over the defenses hearsay objections to explain the officers conduct.

^[3]Although the court overruled the defenses hearsay objection, the prosecutor advised the court that she was presenting this testimony only to explain Grizzells conduct.

^[4]Crawford v. Washington (2004) 541 U.S. 36.