In re D.S. CA1/1 ( 2016 )

Filed 1/15/16 In re D.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re D.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, A144081
Plaintiff and Respondent, (San Francisco City & County
v. Super. Ct. No. JW 14-6270)
D.S.,
Defendant and Appellant.
The juvenile court found appellant D.S., a minor, committed second degree
robbery and felony false imprisonment. Appellant now argues there was insufficient
evidence to prove he was involved with these crimes. Appellant also challenges his
sentence, arguing the case should be remanded with instructions to specify the maximum
term of confinement and award him credits for time served. We conclude the juvenile
court’s findings are supported by substantial evidence, but remand for the limited purpose
of calculating appellant’s maximum term of confinement and credits.
I. BACKGROUND
On September 23, 2014, the San Francisco District Attorney filed a juvenile
wardship petition against appellant pursuant to Welfare and Institutions Code1
section 602, subdivision (a). The petition alleged appellant committed (1) attempted
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
second degree robbery by trying to take a laptop from Patrick Nevels (Pen. Code,
§§ 664/212.5, subd, (c); count 1) and (2) second degree robbery by taking a cell phone
from Nevels (id., §§ 211, 212.5, subd. (c); count 2). The petition lists J.W. and J.T as
cominors. The petition was later amended to add a third count for felony kidnapping (id.,
§ 209, subd. (b)(1); count 3), to add Z.C. as an additional cominor, and to amend count 1
to charge appellant with attempted second degree robbery of both a laptop and a
backpack.
Nevels testified as follows. On September 21, 2014, about 8:50 p.m., he was
walking near the 900 block of Market Street in San Francisco. Someone placed a gun
against the back of his head and demanded his iPhone. Nevels saw three assailants. One
of them reached into Nevels’s pocket and took the phone. Two of the assailants
demanded Nevels’s backpack, which contained a laptop. When he refused to turn over
the backpack, one of the assailants tried to unzip it. Nevels walked away and an assailant
behind him continued to hold the backpack. Nevels then tried to negotiate, offering to
withdraw cash from an ATM and give it to the assailants instead of the backpack. The
assailants agreed. As they walked up Market Street to find an ATM, one of the assailants
said, “do you want to die” and “do you want me to shoot you in the mouth.” The
assailant pistol-whipped Nevels, at which point he realized the gun was fake. Nevels ran
into the street, dragging one of the assailants with him. He waived down a police officer,
and said “these three people . . . just mugged me.” The officer then “just pulled right up
and arrested the three of them.”
At the jurisdiction hearing, Nevels was shown pictures of appellant, J.T., and J.W.,
which were taken after their arrest. Appellant is shown wearing a North Face jacket, dark
pants, and light shoes. Nevels recognized appellant and J.T. as two of the persons who
had been arrested by the officer, but he did not recognize them from the incident. He
recognized J.W. from both the arrest and the incident, stating J.W. was the one who had
held onto his backpack and threatened him with the fake gun.
Several surveillance videos were also admitted into evidence. The videos show
two assailants confronting Nevels, as one of them points something at Nevels’s head and
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then holds onto Nevels’s backpack. Two other individuals approach and confront
Nevels, one of whom appears to be wearing a North Face jacket and light shoes similar to
the ones worn by appellant in the photograph identified by Nevels at the jurisdiction
hearing. The individual in the North Face jacket appears to take something out of
Nevels’s pocket and hand it to one of the other assailants, who runs away from the scene.
When interviewed by police after the incident, appellant stated he was dancing in
front of Show Dogs, at the corner of Market Street and Taylor Street, and said, “What’s
up, Bro?” to someone standing next to him.
The police identified Z.C. from the surveillance videos and detained him. Z.C.
waived his Miranda2 rights, and stated he was at the police station “Because of that dumb
shit in front of the Crazy Horse.” Z.C. said there was a robbery with a fake gun. He
identified Nevels as the victim, and said a cell phone had been taken from him. Z.C. also
admitted he had received the stolen cell phone and sold it for $75.
After the district attorney rested, appellant moved to dismiss all counts pursuant to
section 701.1. The motion was granted as to the kidnapping count, but otherwise denied.
At the conclusion of the hearing, the San Francisco juvenile court found true counts 2 and
3, which charged appellant with second degree robbery of the cell phone and felony false
imprisonment. Count 1, the attempted robbery of the laptop and backpack, was found not
true.
Appellant was adjudged a ward of the court and his case was transferred to Solano
County, where a separate wardship petition had been filed. The matter was later
transferred back to San Francisco for disposition. The court committed appellant to the
care and custody of the probation department, to be placed at an out-of-state facility, and
imposed several conditions of probation.
2
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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II. DISCUSSION
A. Sufficiency of Evidence
Appellant argues the juvenile court erred in denying his section 701.1 motion to
dismiss the charges against him. Section 701.1 is substantially similar to Penal Code
section 1118, which governs motions to acquit in criminal trials. (In re Anthony J. (2004)
117 Cal.App.4th 718, 727.) Thus, in ruling on a section 701.1 motion, the juvenile court
must “weigh the evidence, evaluate the credibility of witnesses, and determine that the
case against the defendant is ‘proved beyond a reasonable doubt before [the defendant] is
required to put on a defense.’ ” (In re Andre G. (1989) 210 Cal.App.3d 62, 66.)
“[T]he standard for review of the juvenile court’s denial of a motion to dismiss is
whether there is substantial evidence to support the offense charged in the petition.
[Citation.] In applying the substantial evidence rule, we must ‘assume in favor of [the
court’s] order the existence of every fact from which the [court] could have reasonably
deduced from the evidence whether the offense charged was committed and if it was
perpetrated by the person or persons accused of the offense. [Citations.] Accordingly,
we may not set aside the trial court’s denial of the motion on the ground of the
insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever
is there sufficient substantial evidence to support the conclusion reached by the court
below.’ ” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)
Here, appellant argues there was insufficient evidence to connect him with the
crime. He contends Nevels could not identify him as a participant in the incident, and the
surveillance videos were too dark and grainy to identify any particular person. Appellant
also argues his statement to the police that he was at Show Dogs, without specifics of
date and time, was worthless. Even if he was at Show Dogs, appellant argues that would
not prove he participated in the robbery, because it took place somewhere on the next
block. Appellant asserts the evidence merely shows he was standing near J.W. and J.T
on Market Street at sometime after the robbery, he was arrested along with J.W. and J.T.,
he was recognized by Nevels as being arrested, and someone with similar hair and attire
was standing near the robbery.
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Appellant’s arguments are unavailing. Nevels testified the police arrested the
three individuals who had robbed him, and he also identified appellant as one of the
individuals who was arrested. This alone is substantial evidence appellant participated in
the charged crimes. While at one point Nevels testified he could only identify appellant
from the arrest, in light of Nevels’s other testimony, the juvenile court could have
reasonably concluded Nevels also recognized appellant from the robbery. To the extent
Nevels’s testimony was inconsistent, we must view the record in the light most favorable
to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 562.)
More importantly, the juvenile court had more than eyewitness testimony. The
surveillance videos of the incident offer compelling evidence appellant was involved in
the robbery. The quality of these videos is not as poor as appellant contends. They show
an individual who strongly resembles appellant follow and confront Nevels, grab
something out of Nevels’s pocket, and hand it to one of the other assailants. The videos
appear to show this individual was wearing the same jacket, pants, and shoes as appellant
on the night he was arrested. Two of these videos also have shots of appellant’s face and
head. It was not unreasonable for the trial court to conclude the individual in the video
was involved in the robbery, or that the individual was appellant. Indeed, considering the
totality of the evidence, it would have been unreasonable for the court to find otherwise.3
Accordingly, we find the juvenile court’s decision was supported by substantial
evidence.
3
Contrary to appellant’s contentions, People v Redmond (1969) 71 Cal.2d 745, is
inapposite. In that case, the court found there was insufficient evidence to identify the
defendant as the perpetrator of the crime. (Id. at p. 757.) Unlike here, the assailant in
Redmond wore a mask covering his entire face, and there was no video surveillance of
the crime. (Id. at pp. 748–749.) At a police lineup, one of the two victims picked out the
defendant based on a similarity in voice and “ ‘an expression across the eyes.’ ” (Id. at
p. 750.) At trial, the victim conceded she was unable to identify the defendant at the
lineup, saying she thought the assailant was bigger. (Ibid.) She testified only that the
defendant resembled her assailant. (Id. at p. 756.) The facts here are substantially
different.
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B. Sentencing
Appellant argues the juvenile court erred by failing to specify the maximum term
of confinement and the credits earned for time spent in custody. The Attorney General
concedes the claims have merit. We agree. (See § 726, subd. (d)(1) [order removing
minor from parent’s custody “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”]; In re Emilio C. (2004)
116 Cal.App.4th 1058, 1067 [“minor is entitled to credit against his or her maximum
term of confinement for the time spent in custody before the disposition hearing”].)
Accordingly, we remand for the limited purpose of determining appellant’s maximum
sentence and the calculation of credits.
III. DISPOSITION
The matter is remanded for the purpose of calculating appellant’s maximum term
of confinement and credits. The judgment is affirmed in all other respects.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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