In re Tye S.

Filed 2/28/07 In re Tye S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed as modified.

Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

Tye S. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a true finding that on September 14, 2005, she made a criminal threat in violation of Penal Code section 422, a felony. She was placed on probation in the home of her parents, and the maximum period of confinement was determined to be three years. She contends the evidence was insufficient to establish she violated Penal Code section 422, prosecutorial misconduct requires reversal, and the minute order should be corrected to delete any reference to a maximum term of confinement. For reasons stated in the opinion, we strike the maximum period of confinement and in all other respects affirm the order of wardship.

FACTUAL AND PROCEDURAL SUMMARY

On September 14, 2005, at approximately 11:00 a.m., Patricia Smith, the founder and director of C.A.T.C.H. High School, was on campus and saw appellant and co-defendant Tiffany S. threaten a child, who was on the school yard. Shortly thereafter, the girls attempted to enter the schools gate. Ms. Smith told them they could not come in, and they left.

At approximately noon, Ms. Smith left the school in a truck driven by her assistant to pick up lunch at Crenshaw High School. Along the way, their truck stopped behind a white Cadillac, which was stopped at a stop sign. There were two men in the Cadillac. Appellant, Tiffany S. and another girl were outside the car talking to them. When the Cadillac drove off, the three girls were yelling out things. Tiffany S. extended her right hand with the thumb pointing upward, index finger pointing outward, the rest of the fingers clasped and said to Ms. Smith, Im going to kill you, bitch. Ms. Smith took the hand gesture to mean Tiffany S. was going to kill her with a gun. Appellant was there, approximately one foot behind Tiffany S., throwing up gang signs directed at Ms. Smith. Ms. Smith was familiar with gang signs, because she has gang students in her school. She felt threatened by both girls and feared for her safety. She thought they were going to hurt her as gang members dont play.

After Ms. Smith finished her errand, she returned to school and called the police. The police responded to her call at approximately 1:00 p.m. She told them what happened, they drove her to the site of the incident, where she identified the three girls.

In defense, appellant testified she was not a gang member, had a B+ average, attended USC on Saturdays and planned to go to college. She is a flag girl, a member of the swim team and plays golf. She did not go to C.A.T.C.H. school on September 14 and was not involved in the incident with Ms. Smith. She had stayed home from school that day for her own safety; the day before she had gotten into a fight with some people, one of whom was a student at C.A.T.C.H. school. On the day of the incident, she left her home at approximately 1:30 p.m. to get something to eat with Tiffany S. Tiffany S. testified she and appellant walked past C.A.T.C.H. school on their way to buy something to eat. Tiffany S. had stayed home from school that day because she was not feeling well.

DISCUSSION

I

Appellant contends the evidence was insufficient to establish she violated Penal Code section 422. We disagree. The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgmentbelow to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

This standard applies to cases based on circumstantial evidence. [Citation.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Penal Code section 422 provides in pertinent part, Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

Contrary to appellants claim, Ms. Smith identified appellant both at the scene and at trial as the individual who yelled and threw up threatening gang signs while her accomplice made a handgun-like gesture and stated she was going to kill Ms. Smith. Ms. Smiths testimony was not inherently unreliable. Further, there was more than just a mere gesture by appellant. There was a joint and concerted action by appellant and her companions, and appellant was properly found to have committed the offense. (See People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)

II

Appellant contends prosecutorial misconduct requires reversal. She claims the prosecutor improperly denigrated defense counsel, testified to facts not in evidence and misstated evidence.

Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury [citations] or is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process [citation]. [Citations.] A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.] (People v. Kennedy (2005) 36 Cal.4th 595, 617-618.)

Appellant claims during closing argument the prosecutor questioned defense counsels tactics, arguing that a portion of the defense case had been fabricated.[1] Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the [trier of fact] to decide. [Citation.] Harsh and vivid attacks on the credibility of opposing witnesses are permitted, and counsel can argue from the evidence that a witnesss testimony is unsound, unbelievable, or even a patent lie. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 522.) Rather than denigrating defense counsel, the prosecution was attacking the credibility of appellants defense witness.

Appellant also claims the prosecutor testified to facts not in evidence.[2] The record reflects, however, that the prosecutions statement occurred during a discussion regarding whether the parties could stipulate to certain facts. As the trial court reasoned in overruling the defense objection, it was argument and not testimony.

Equally unavailing is the claim that the prosecutor misstated the evidence. Appellant alleges the prosecutor argued co-defendant Tiffany S.s hair was dyed at the time of the incident and had grown out when testimony was that it was not dyed at the time and that practice was not to color it up to the roots . . . .[3] Again, as the trial court observed in overruling the defense objection, it was fair argument. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citations.] (People v. Lucas (1995) 12 Cal.4th 415, 473.)

III

Appellant contends the minute order should be corrected to delete any reference to a maximum term of confinement for appellants disposition of home on probation. Welfare and Institutions Code section 726, subdivision (c) provides, If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

By its express terms, Welfare and Institutions Code section 726, subdivision (c) applies only if a minor is removed from the physical custody of his or her parent or guardian. Appellant was not removed from the physical custody of his parents, there was no confinement, and the order setting a maximum term of confinement is erroneous. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)

DISPOSITION

The maximum term of confinement is stricken and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] The prosecution questioned why appellants alibi witness was not present the first day of trial, stating It was only after continuation was granted, she came here. Why the delay? []  . . . [] The first time that testimony was heard regarding this alibi witness was after the witness had an opportunity to fabricate on the stand.

[2] During a defense motion to continue the trial and a discussion whether the parties would stipulate to certain facts to avoid a continuance, the prosecution apparently read a sentence from the police report, Defendant [S.] and [S.] began to simulate a handgun. Saying, Were going to kill you.

[3]The prosecution argued that the co-defendant had been identified not only by the face, but by the coloration of her hair. Of course, [co-defendant S.] claims her hair was dyed in January. However, as the court, we can all see, last week, it was almost four inches of roots where the blue hair began, indicating it has been several months since that hair has been dyed.