In re Corey L.

Filed 3/9/07 In re Corey L. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Following contested jurisdictional and dispositional hearings, Corey L. was declared a ward of the juvenile court after allegations were sustained that he committed one felony offense of second degree robbery and one felony offense of second degree robbery while personally using a deadly weapon, a pellet gun. The court removed Corey from the custody of his parents, committed him to a Boys Ranch for a maximum term of 180 days less 17 days custody credit, and specified the maximum term of physical confinement as seven years.

Coreys appellate counsel filed a brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. Counsel discovered no issue meriting argument, but suggested possibly arguable issues regarding the admission of certain evidence and the effectiveness of defense counsel. Following our independent review of the record, we asked the parties to provide supplemental briefing regarding those issues raised by appellate counsel, as well as the additional issue of whether the court improperly removed Corey from the custody of his parents. With the aid of the supplemental briefing, we conclude that none of the issues warrants reversal and shall affirm.

FACTS

The district attorney filed a petition alleging that Corey, then 15 years of age, had committed two robberies: in one the victim was 16-year-old Joseph E. and in the other it was an adult man, Zhiru Wang. It was also alleged that during the Wang robbery, Corey personally used a deadly weapon, a pellet gun.

At the jurisdictional hearing in October 2005, the prosecutor called as witnesses the two robbery victims, and the investigating police officers. The defense called as witnesses Corey, his mother, and his good friend, Chris C.

Joseph E. testified that on July 27, 2005, at about 9:30 p.m., he was robbed by Corey and another youth. Displaying a pistol that he had taken from his waistband, but pointing the barrel downward, Corey told Joseph, Give me your stuff. Corey then searched Josephs pockets and took his iPod music player. A second person with Corey took Josephs bicycle. Both Corey and the second person ran away, and Joseph reported the incident to the police. Later that evening, during an in-field identification arranged by the police, Joseph identified Corey as the armed robber. The police returned Josephs stolen bicycle, and Joseph identified a gun recovered by the police as the gun used by Corey. Joseph was positive of his identification of Corey at the showup, but by the time of the hearing he was not exactly sure Corey pulled the gun on him during the robbery. Joseph also identified the clothes Corey had been wearing on the night of the robbery and what he believed was the gun that was shown to him during the robbery.

Wang testified that on the same evening, he was robbed by Corey, who was shorter than Wang, and by two other youths who were taller than Wang. Wang testified that the two taller youths demanded money and then took his wallet, which contained some cash, a bank card, and a school identification card. During the robbery Corey did not say anything but he held a gun aimed towards the ground. After the youths fled, Wang called the police and described the assailants. Within five to ten minutes, the police arrived and took Wang to an in-field showup, where he identified two of the men. Wang was not positive that one of the youths was involved but he was very sure of his identification of Corey as the armed robber. In court, Wang identified Corey as the armed robber.

Police Officers Scott Barr and Brian Hoffman, Reserve Officer William Bell, and Police Sergeant Peter Statton testified regarding their apprehension of Corey after a chase through a restaurant parking lot. Bell saw Corey reaching into his waistband and at about the same time Barr heard a metallic object drop to the ground in the parking lot. After Barr arrested Corey, the officer advised Corey of his Miranda[1] rights, and asked where the gun was. Corey told the officer the gun was behind the restaurant, and it was later found at that location. The gun was a black, powered pellet gun, which resembled a Smith and Wesson large framed automatic. Corey also told the officer he had been running because he was scared by the officers chasing him, but he had not done anything wrong. Hoffman and Statton testified to the victims separate in-field identifications of Corey after his arrest.

At the police station, Detective Ian Wong interviewed Corey after again reading him his Miranda rights. Wong spoke to Corey on three separate occasions. Corey first stated he met his friends, Dru and Devin P., at a restaurant. Corey said he had the pellet gun concealed on his person because he wanted to sell it to one of his friends. After they left the restaurant, they walked to a liquor store, where Corey gave the gun to Devin. Devin and Dru first took from a youth his bicycle and iPod player. They then robbed an Asian man of his wallet. After the second robbery, Dru gave the gun back to Corey. When they saw a police car, they began running, and Corey dropped the gun. The second time he spoke with Wong, Corey changed his story, stating that Devin never had the gun and was not involved in the first robbery, but that it was Dru who was armed with the gun and together with another unidentified youth robbed both victims. During the third conversation, Corey asserted the gun did not belong to him, and that he was standing on a corner when Dru and a boy named Jeremy robbed both victims. After the second robbery, Dru handed the gun to Corey and all three ran away. Corey gave the detective some identifying information about Dru but claimed not to know Jeremy.

A few days after the robbery, Detective Wong interviewed Dru in the presence of his parents. After being advised of his Miranda rights, Dru said that on the day of the robberies he met Corey and some friends at a restaurant, but he denied any involvement in the robberies or knowledge of the pellet gun. Wong gave Dru several opportunities to change his story but he never did so.

Defense counsel questioned Wong about his investigation of the information he received from Corey that Dru and Jeremy were the robbers. Wong vaguely recalled that someone in the police department obtained Drus phone number by examining Coreys cell phone, but he did not know whether the police looked for Jeremys number. Wong had some difficulty reaching Dru on his cell phone, and the officer did not believe Drus explanation that he hung up on Wong because he thought someone was messing around with him. Wong did not question Dru about anyone named Jeremy, and he did not ask Dru the identity of the male youths he had been with that evening. Wong could not explain why he had made no effort to learn who Jeremy was. Over the prosecutors objections, defense counsel asked Wong, Is that the impression that you want this court to have that you believed [Dru] in his denials of this robbery? to which Wong replied, Yes. And when next asked, That is what you want us to believe? Wong again replied, Yes . . . [d]ue to the sincerity in [Drus] statement and the fact that his parents were there, were extremely emotional and were talking with him. Wong also described the demeanor of both Dru and his parents during the interview.[2]

Corey testified to his actions on the day of the robberies. Some time before the robberies, Devin showed him a pellet gun. The gun was not loaded and Corey did not think it had been used in the robberies. Corey and several friends and acquaintances, Brandon, Dru, Devin P. and Chris C., met at a restaurant. From there, the group walked to a liquor store, where they met Jeremy. Corey had never met Jeremy before and did not know his last name. At that time no one discussed committing a robbery.

The group then started walking to another liquor store. Brandon left the group. Corey, Chris and Devin sat down on a street corner, while Dru and Jeremy walked towards a bicyclist. When the bicyclist changed direction, Dru and Jeremy ran after him, and the bicyclist stopped. After talking with the bicyclist, Dru and Jeremy took the bicycle and ran back to the three youths at the corner. Jeremy showed Corey an iPod, and Corey just looked away. On direct examination, Corey denied seeing a gun during the robbery. But on cross-examination, he said he thought Devin gave his gun to Dru immediately before the robbery, and that during the robbery Dru lifted his sweatshirt and showed the gun to the bicyclist. As the group walked from the corner, Jeremy tried to give the gun to Corey. Corey did not know when Jeremy gained possession of the gun but when Corey refused to take it, Jeremy said, all right, and handed it back to Dru.

While walking away from the first robbery, the group saw an Asian man walking towards them. Jeremy told the man to stop, and Dru pulled out the gun and told the man to give him his wallet. The man gave Dru the wallet, and Dru then handed the gun to Jeremy. As Jeremy ran away, he shoved the gun at Coreys chest, saying, Take it before I F you up. Corey put the gun in his pants pocket and began running with the rest of the group. He did not know why he did not throw the gun away, instead of putting it in his pocket. Dru and Jeremy were running ahead of Corey, and then Jeremy ran off in a different direction. Devin rode away on the bicycle. As Corey ran into a restaurant parking lot, he dropped his cell phone. When he stopped to pick it up, he slipped and dropped the gun. Corey then jumped a fence and hid in a nearby yard, where he was found by the police. Corey ran from the police because he was around a robbery and . . . somebody had handed [him] a gun; and he was afraid he was going to get caught and get in trouble.

Corey confirmed that he made the statements testified to by Wong, but asserted that he told him a lot of lies. Corey lied because he was afraid of going to Juvenile and being a snitch. He was not afraid of incriminating Dru and Devin. But, because he was afraid of Jeremy, Corey initially said it was Devin who committed the armed robbery. Corey did not like Devin and believed the police would not be able to catch him. During the third interview Corey identified Jeremy because he realized how serious it was. Corey believed he would be safer with Jeremy in jail.

While incarcerated pending the jurisdictional hearing, Corey wrote a letter to the court in which he stated he had been caught up in the wrong crowd, and [w]hen they did what they did the first time, I wasnt involved in that but . . . the second one I was because my life was threatened. When asked at the hearing what he meant, he explained he was there when it happened but did not encourage or help anyone commit the robbery.

Coreys mother testified that when she visited Corey in juvenile hall after his arrest, Corey was crying, emotional, and said he was innocent and afraid of being killed by a youth named Jeremy and the police. Corey told his mother that Jeremy was Drus friend or cousin or something, and that Jeremy was going to F up Corey.

Chris C. testified he was with Corey shortly before Corey was arrested but did not see him arrested or run from anyone. He denied Corey had anything to do with either robbery. Chris asserted that on the evening in question, he met Corey and some other youths at a restaurant and later walked to a liquor store. He did not see the robbery of the bicyclist; he only saw Dru and Jeremy return with the bicycle and the iPod. Chris did see Dru and Jeremy approach an Asian man and suspected they were going to rob him. He did not see this second robbery but he heard Dru and Jeremy talking to the man in angry tones. Jeremy and Dru then came running towards Chris and the other youths, yelling, Run. The police are behind us. Corey ran through a restaurant parking lot, while Jeremy, Chris and Dru, ran in other directions. Chris first testified Jeremy and/or Dru shoved the gun at Corey and then heard the gun fall to the ground. He then testified he did not know who dropped the gun or whether Corey had the gun at some point or another. However, on cross-examination, Chris testified he never saw a gun that night, he did not know what he heard fall in the restaurant parking lot, and he did not see Jeremy approach Corey after the second robbery.

Corey was recalled as a defense witness to dispute Chriss testimony regarding where the two youths were standing at the time of the second robbery. While Chris had testified he and Corey were standing within touching distance of each other but across the street from the robbery, Corey testified he was standing on the same side of the street where the robbery took place.

Coreys attorney asked the court to view the videotape of Detective Wongs interview of Dru, asserting that it bears on the credibility of the police officer and the investigation that he conducted, and it[] [is] going to be probative as to whether or not the court should believe Detective Wong when he says that he believed [Dru] when he was denying his participation in this robbery. Defense counsel argued that because Wong offered an opinion about Drus truthfulness, the issue of Drus credibility was before the court. The court rejected this argument, stating that it could not consider Drus statements because foundational requirements, including those mandated by Crawford v. Washington (2004) 541 U.S. 36,[3] had not been met. The court ruled it could not accept the statements of the co-responsible or the alleged co-responsible as substantive evidence in the case, but it would view the tape to assess inconsistencies in the detectives statements under oath. After viewing the tape, the court admitted it into evidence (over the prosecutors relevancy objection) for the limited purpose of evaluating Wongs credibility.[4] The court reiterated that it would not consider Drus taped statements for any purpose because those statements were inadmissible hearsay.

The court found the allegations and enhancement to be true beyond a reasonable doubt. The court noted that both victims identified Corey as the armed robber, that when apprehended Corey made an admission that implied he knew about the gun, and he made an admission regarding the second robbery in his letter to the court. The court also found Corey was evasive and not believable, especially in light of the testimony from other witnesses, including Chris C., which contradicted Coreys statements. Nor did the court find the evidence of duress to be credible. Additionally, the court did not find Chris C. credible regarding what had occurred after the second robbery.

DISCUSSION

I. Admission of Detective Wongs Testimony

Corey challenges the admission of Wongs testimony regarding Drus statements denying participation in the robberies, and Wongs opinion that Dru was telling the truth. Although there was no objection to this testimony, some of which was elicited by defense counsel, Corey contends his attorney was ineffective in failing to object because the evidence undermined his defense.

To establish ineffective assistance of counsel, there must be established either that: (1) [a]s a result of counsels performance, the prosecutions case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. (In re Visciotti (1996) 14 Cal.4th 325, 351-352.) It is unnecessary to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage. (Id. at p. 353.) Ultimately,  [t]he benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  (Id. at p. 352, quoting Strickland v. Washington (1984) 466 U.S. 668, 686; accord, In re Cudjo (1999) 20 Cal.4th 673, 687.) Corey does not question the need to show prejudice. He contends that a more favorable outcome was reasonably probable had his counsel not performed ineffectively by failing to object to Wongs testimony that Dru denied involvement and by compounding the prejudice by eliciting Wongs opinion that Drus denials were credible.

The choice of when to object and when to allow . . . evidence to come in as offered is inherently a matter of trial tactics. Ordinarily the tactical decisions of trial counsel will not be reviewed with the hindsight of an appellate court. [Citations.] The decisions which counsel must make in the courtroom will necessarily depend in part upon what he then knows about the case, including what his own client has told him. There may be considerations not shown by the record, which could never be communicated to the reviewing court as a basis for its decision. Thus, the appellate courts inability to understand why counsel did as he did cannot be a basis for inferring that [counsel] was wrong. (People v. Garrison (1966) 246 Cal.App.2d 343, 350-351.)

We need not resolve whether the challenged evidence should have been admitted. Assuming that Coreys attorney should have objected to Wongs testimony, and should not have elicited his opinion of Drus credibility, Corey has failed to establish any prejudice. The court stated explicitly that Wongs testimony was being considered only on the issue of the adequacy of the police investigation of the robberies. When defense counsel sought to admit the videotape of Drus interview, the court expressly ruled it would not consider Drus statements for any purpose because the evidence was inadmissible hearsay. In sustaining the allegations against Corey, the juvenile court did not mention any portion of Wongs testimony. The record clearly indicates that the juvenile court did not consider any of Wongs testimony for an improper purpose. There is no basis to conclude the courts jurisdictional findings were rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsels assistance. (Strickland v. Washington, supra, 466 U.S. at p. 700.)

II. Removal of Corey From The Custody of His Parents

A. Relevant Facts

The probation departments report recommended out-of-home placement for Corey on the following grounds: seriousness of his offenses, his danger to the community, his denial of full responsibility for his actions, and his need [for] the intervention of a structured treatment program to help in prevention of further and possibly even more serious offenses. The report noted Corey did very well in school and that all of his relatives had written supportive letters. Although Coreys mother had legal custody, during the pendency of the juvenile proceedings Corey was placed in the home of his father and stepmother under the supervision of the probation department. Both parents were willing to take custody of Corey, and both were shocked by his misbehavior. However, Corey appeared to minimize and deny his acting out, and he did not seem to give an accurate account of the offenses. Although Corey reported he had tried marijuana twice, when confronted with his earlier statement he strongly denied ever experimenting with drugs.

At the dispositional hearing, the court heard testimony from Coreys father, an employee of the Contra Costa County juvenile hall. While in his fathers custody, Corey was doing well at home and at school. The father asserted Coreys behavior at home had not changed significantly since his arrest in that he was still a quiet, introverted, polite and mild-mannered youth. Coreys father disagreed with the probation department recommendation that Corey needed psychological help or to be placed in a group home. Despite the courts jurisdictional findings, Coreys father still believed Corey was innocent of the charges.

In committing Corey to a Boys Ranch for six months, the juvenile court considered the probation report, its own findings made at the jurisdictional hearing, and the testimony of Coreys father that Coreys misbehavior was out of character. The court noted that although Coreys offenses ordinarily would justify a commitment to the California Youth Authority or a nine-month mandatory commitment at a Boys Ranch, it was committing Corey to only a six-month regular program at Boys Ranch, which would result in his release after four months if he stayed out of trouble.

Corey argues the dispositional order should be reversed because there was no substantial evidence to show that it was in his best interests to be removed from his fathers home and placed at the Boys Ranch, or that reasonable efforts were made to eliminate the need for removal from his home. We disagree. The decision of the juvenile court . . . may be reversed on appeal only upon a showing that the court abused its discretion in its commitment of the minor. A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. [Citations.] If a commitment conforms to the general purpose of [Welfare and Institutions Code section 202[5]], the disposition will be deemed to fall within the sound discretion of the juvenile court. (In re James H. (1981) 121 Cal.App.3d 268, 273, fn. omitted.) As enunciated in section 202, [m]inors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. ( 202, subd. (b).) Although Corey did not have a prior delinquent history, the court could appropriately find the gravity of the offenses reflected that Coreys parents were not exercising sufficient control to keep him from delinquent behavior, and that a more stern intervention was necessary for Coreys sake and for the protection of the public. ( 202, subd. (e)(4); 725.5, 726, subd. (a)(3).) The purpose of the commitment order was to impress upon the juvenile the seriousness of his misconduct, without the imposition of a more serious commitment. [Citation.] The confinement order informs the juvenile that continued misconduct will lead to even more serious consequences and thus encourages rehabilitation. (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1207.) The commitment order was proper because it was consistent with the rehabilitative purposes of the [law] and not retributive. ( 202, subd. (b).) (In re Tyrone O. (1989) 209 Cal.App.3d 145, 152.) On this record, we see no abuse of discretion.

DISPOSITION

The dispositional order of December 7, 2005, is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

_________________________

Parrilli, J.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] In overruling the prosecutors objection to some of this questioning as argumentative, the court noted that the issue of the credibility of the young man [Dru], obviously, I cant assess the credibility of that witness. . . . I havent seen him, so this goes to the probative value of the investigation for the record.

[3] In Crawford v. Washington, supra, 541 U.S. 36, 59, the Supreme Court held that [t]estimonial statements of witnesses absent from trial [are] . . . admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

[4] Defense counsel argued that the tape was probative of Wongs credibility because Wong testified that he believed Dru, but during the taped interview Wong repeatedly told Dru that he did not believe him. While the court admitted the tape, it acknowledged it would be difficult to differentiate between the detectives belief in the statements he made during the interview as distinguished from investigative techniques that he might use to induce the subject to be truthful.

[5] All further statutory references are to the Welfare and Institutions Code.