In re Victor R. CA2/2 ( 2013 )

Filed 11/25/13 In re Victor R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re VICTOR R., a Person Coming Under B248180
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. VJ42787)
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Stephanie M. Davis, Juvenile Court Referee. Affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
******
The minor, Victor R., appeals from an order declaring him to be a ward of the
court pursuant to Welfare and Institutions Code section 602, upon findings that he had
assaulted victim Jesus V. in violation of Penal Code section 241, subdivision (a), a
misdemeanor. The juvenile court continued Victor R. as a ward of the court, placed him
under the care and supervision of the probation department and ordered that he be
suitably placed for a period not to exceed one year and five months. Appellant contends
there was insufficient evidence that he committed the assault.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 19, 2013, the Los Angeles County District Attorney filed a Welfare
and Institutions Code section 602 petition alleging that 16-year-old appellant committed
assault (Pen. Code, § 241, subd. (a),1 count 1), and attempted to commit robbery
(§§ 664/211, count 2). It was further alleged that appellant, in the commission of count 1,
inflicted great bodily injury (§ 12022.7, subd. (a)). Following a contested hearing the
juvenile court found with respect to count 1 “that the lesser included offense of assault”
had been “found true beyond a reasonable doubt.” The court struck the word “felony”
and added “misdemeanor.” The petition was sustained as amended.2
Prosecution Case
On December 12, 2012, at approximately 9:15 p.m., Jesus V. was walking down
61st Street near Clarkson Avenue in Los Angeles when he was approached by appellant
and Matthew G.3 who started talking to him. Matthew wore a gray sweater and walked
next to Jesus. Appellant wore a black sweatshirt, black beanie, and shorts, and walked
behind Jesus. Jesus took off his headphones and heard Matthew say, “You are going to
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The juvenile court dismissed count 2, along with the great bodily injury special
allegation.
3 Matthew G. is not a party to this appeal.
2
be jumped.” Jesus ran away and heard someone chasing him. He ran approximately one
block to the 99¢ Only Store. Before he entered the store, he looked back and saw
appellant and Matthew together.
Jesus stayed in the 99¢ Only Store for about five minutes. When he walked
outside the store he saw appellant and Matthew, and they chased him again. Matthew
grabbed Jesus, turned him around and punched him in the face. Matthew punched Jesus
approximately 10 to 15 times when Jesus was on the ground. Jesus felt appellant
grabbing and pulling on his sweatshirt pocket. Appellant and Matthew ran away and a
witness inside the store called the police.
Los Angeles County Deputy Sheriff Roger Parga responded to the 99¢ Only Store
and spoke to Jesus about the incident. Jesus stated that two males approached him and
punched him. He provided a description of the assailants. Deputy Parga learned that two
males had been detained approximately five blocks from the 99¢ Only Store. Deputy
Parga took Jesus to that location and conducted a field identification. Jesus was
nearsighted and was not wearing glasses or contacts. He was approximately 20 to 25 feet
away from appellant and Matthew when he identified both of them based on their height,
weight and clothing. At the time of his arrest, appellant was wearing a black hooded
sweater, a black beanie with a Raiders logo, and gray shorts. Jesus, while wearing
glasses, identified appellant in court.
Matthew was advised of his Miranda4 rights and made a statement at the police
station. Matthew stated he was walking home with his friend when Jesus walked around
him without saying “excuse me.” He confronted Jesus and fought him because he felt
Jesus was being disrespectful. He stated he left the scene and was later stopped by the
police.
Defense Case
No evidence was presented on behalf of appellant.
4 Miranda v. Arizona (1966) 384 U.S. 436.
3
DISCUSSION
Appellant contends that the juvenile court’s true finding on the assault allegation is
not supported by substantial evidence. Specifically, appellant contends the identification
was unreliable because appellant could not discern any facial features and relied
primarily on recognizing appellant’s clothing.
The same standard governs review of the sufficiency of evidence in juvenile cases
and adult criminal cases. (In re Christopher F. (2011) 194 Cal.App.4th 462, 471, fn. 6;
In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) We review the entire record in the
light most favorable to the juvenile court’s findings “to determine whether any rational
trier of fact could have found the essential elements of the crime or special circumstances
beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357, italics
omitted; In re Christopher F., supra, at p. 471, fn. 6.) “The record must disclose
substantial evidence to support the [findings]—i.e., evidence that is reasonable, credible,
and of solid value . . . .” (Zamudio, supra, at p. 357.) Even if we conclude that a
reasonable trier of fact could reconcile the circumstances with a contrary finding, we
affirm the court’s order unless it appears “‘“that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the [court’s findings].” (Ibid.)
The findings of fact concerning eyewitness identification testimony are binding on
us unless the evidence is so weak that it amounts to no evidence at all. (People v.
Mohamed (2011) 201 Cal.App.4th 515, 521 (Mohamed).)
Jesus identified appellant at a field identification and also identified appellant in
court. (People v. Hughes (1969) 271 Cal.App.2d 288, 291 [“the inescapable fact of
in-court eyewitness identification” is sufficient to sustain a conviction].)
Jesus also testified that he saw appellant on a number of occasions: when
appellant was walking behind him on the street, when he turned to look back after
initially running away from appellant and Matthew, when he exited the 99¢ Only Store,
and when Matthew assaulted him. Jesus was in close proximity to appellant because he
testified that appellant grabbed and pulled his sweatshirt while Matthew was punching
4
him. (People v. Lundy (1969) 2 Cal.App.3d 939, 944 [when the circumstances
surrounding the identification and its weight are explored at length at trial, where
eyewitness identification is believed by the trier of fact, that determination is binding on
the reviewing court].)
The fact that Jesus did not get a good enough look at appellant’s face upon which
to base his field identification does not mean there was insufficient evidence to support
the juvenile court’s order. Even where an eyewitness does not see the perpetrator’s face,
identification can be based on other peculiarities such as size, appearance, and similarity
of voice, features, or clothing. (Mohamed, supra, 201 Cal.App.4th at p. 522, citing
People v. Lindsay (1964) 227 Cal.App.2d 482, 494; People v. James (1963) 218
Cal.App.2d 166, 170 [evidence of identification sufficient even though robber’s face was
covered by mask, where witnesses identified him based on his Scottish accent, peculiar
walk, clothing, and general appearance].)
The defendant in Mohamed was convicted of robbery based on field
identifications by two eyewitnesses. One witness said that the robber wore a mask that
left the bottom of his face visible, allowing her to see the shape of his jawline, nose, and
mouth. During her field identification of the suspect, she told the police she was
80 percent sure Mohamed had been the robber based on his clothing, facial features, and
build. She also identified Mohamed at trial. The other witness based his curbside
identification on the clothes Mohamed was wearing, and said he was 100 percent certain
of his identification. (Mohamed, supra, 201 Cal.App.4th at pp. 521–522.)
The Mohamed court held there was sufficient evidence to support the verdict. The
police detained Mohamed just blocks away from the robbery because he fit the witnesses’
descriptions. The first witness identified Mohamed because he was wearing the same
clothing, including a “nylon do-rag” that the witness said matched the fabric used to
mask the robber’s face. (Mohamed, supra, 201 Cal.App.4th at pp. 521–522.) The
strength of this evidence was not undermined by the first witness’s doubts about her
identification, by the fact that neither witness saw the defendant’s entire face, or by any
5
inconsistencies in the witnesses’ testimony. Instead, those raised issues of credibility that
the jury was free to resolve. (Id. at p. 522.)
We conclude there was sufficient evidence to support the juvenile court’s finding
that appellant assaulted Jesus. Jesus described appellant’s height, weight, general age,
and clothing. Appellant and Matthew were detained approximately five blocks from the
99¢ Only Store by the police within minutes because they matched the descriptions
provided by Jesus.
Appellant challenges the reliability of the identification because Jesus was not
wearing glasses at the time of the field identification. But “‘the strength or weakness of
the identification’” goes towards “‘the weight of the evidence and the credibility of the
witnesses, and are for the observation and consideration, and directed solely to the
attention’” of the trier of fact. (Mohamed, supra, 201 Cal.App.4th at p. 522.)
“‘Apropos the question of identity, to entitle a reviewing court to set aside a jury’s
finding of guilt the evidence of identity must be so weak as to constitute practically no
evidence at all.’ [Citations.]” (Mohamed, supra, 201 Cal.App.4th at p. 521.) Such is
clearly not the situation here. In view of Jesus’s testimony in this case, we determine that
there was ample evidence to support the juvenile court’s finding that appellant committed
the assault.
6
DISPOSITION
The order sustaining the petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
7