People v. J.R. CA2/6 ( 2022 )

Filed 8/23/22 P. v. J.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. Nos. B311542, B313672
(Super. Ct. No. YJ40620)
Plaintiff and Respondent, (Los Angeles County)
v.
J.R.,
Defendant and Appellant.
J.R. appeals a juvenile court order adjudicating him to be a
ward pursuant to Welfare and Institutions Code section 602, and
committing him to the California Department of Corrections and
Rehabilitation, Division of Juvenile Facilities (DJF). We strike
the discretionary conditions of probation imposed by the court,
but otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
First Petition
On August 7, 2020, the Los Angeles County District
Attorney filed a petition alleging that J.R. carried an
unregistered, loaded firearm on his person or in a vehicle in
violation of Penal Code section 25850, subdivision (a).1 On
August 27, 2020, J.R. admitted the allegation. The juvenile court
declared the crime to be a felony, adjudicated J.R. to be a ward of
the court, and placed him on probation with terms and
conditions. (Welf. & Inst. Code, § 602.)
Second Petition
Shortly after midnight on October 1, 2020, Long Beach
Police Officer Jeffrey Vandemoortel received a dispatch call
reporting gunshots fired near Locust Avenue and Pacific Coast
Highway. He arrived at the scene and rendered first aid to E.J.,
who had gunshot wounds to each leg as well as his left elbow.
Police Officer Daniel Gibson was nearby and observed four
Hispanic males running away.
A female witness contacted police officers and stated that
she saw several people running across a nearby driveway. Police
Officer Daniel Larrieu then saw a Hispanic man wearing a red
hat and a white shirt peer over a fence. Larrieu drew his firearm
and ordered the man to surrender. Instead, the man dropped
behind the fence and a chase ensued. Larrieu began pursuing a
second person as well.
Police Officer Shmuel Rouzaud also received the dispatch
call regarding gunshots fired. The call described a suspect
wearing a long-sleeved white shirt and a red hat. Rouzaud
subsequently observed a person wearing that clothing who was
walking and then running. Rouzaud pursued but could not catch
the person.
Rouzaud then walked the route of the chase and, at
approximately 3:00 a.m., encountered J.R. and another person
1All statutory references are to the Penal Code unless
otherwise stated.
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inside an open garage. J.R. wore a hoodie without a shirt
underneath, jeans, and tan-colored shoes. J.R. gave a false name
and false birthdate to Rouzaud. Rouzaud searched the garage
but did not discover evidence of any crime. After six to 10
minutes, he released J.R.
Within a short time, Police Officer Bradley Muhlenkamp
stopped J.R. and another minor, A.A., on Pacific Coast Highway.
When detained, J.R. wore a red sweater, black sneakers, and had
a single black glove. “Little Mobsters 13,” a local street gang,
associated with the color red.
Investigating officers then went to an apartment building
near where Larrieu first saw J.R. peer over the fence. In a
shopping cart outside an apartment, officers discovered a long-
sleeved white shirt, tan shoes, and a .40 caliber semi-automatic
firearm. A red hat lay behind the cart. Larrieu testified that the
items were similar to those worn by the person he had chased.
The owner of the cart disclaimed ownership or knowledge of the
items.
Investigating officers also found four .40 caliber and four
nine-millimeter bullet casings in the area of the shooting. A
criminalist testified that the firearm found in the shopping cart
had fired the casings located at the crime scene.
Police officers placed J.R. and A.A. in a police car and
surreptitiously recorded their conversation with a body camera.
J.R. asked A.A. if he knew where “the burner and everything”
were located. A.A. responded that the items were in the shopping
cart. J.R. also stated that he was wearing A.A.’s red sweater and
that his “homie . . . Thumper” would be proud of him. The
prosecutor played the video/audio recording at the adjudication
hearing.
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Investigating officers located videotape of the incident.
Officer Muhlenkamp viewed the videotape and identified a
person with a firearm as consistent with A.A. and a person
wearing a long-sleeved white shirt as consistent with J.R. The
identifications rested upon body build and specific items of
clothing; faces were not identifiable from the videotape.
On October 2, 2020, the district attorney filed a petition
alleging that J.R. committed attempted murder in violation of
sections 664 and 187, subdivision (a), along with special
allegations and enhancements. The juvenile court later granted
the prosecutor’s motion to dismiss the special allegations and
enhancements. On March 12, 2021, the court found the petition
to be true and continued J.R. as a ward of the court.
At a later disposition hearing, the juvenile court committed
J.R. to DJF. The court calculated J.R.’s maximum time to be
seven years eight months for the two petitions, less credits.
J.R. appeals and contends that the juvenile court erred by:
1) denying his motion to dismiss based upon the alleged failure of
law enforcement to preserve evidence; 2) denying his motion
based upon Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess); 3) committing him to the DJF; and 4) imposing
probation conditions with his DJF commitment.
DISCUSSION
I.
J.R. argues that the juvenile court erred by denying his
motion to dismiss pursuant to Arizona v. Youngblood (1988) 488
U.S. 51, and California v. Trombetta (1984) 467 U.S. 479(Trombetta/Youngblood). He asserts the error denied him due
process of law pursuant to the federal and California
Constitutions.
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J.R.’s motion concerned a homeowner’s videotape that was
recorded over before preservation by law enforcement. A police
officer viewed the video recording and took partial videos and two
still photographs. The officer believed that a technician would
download the video recording and preserve it, but that did not
occur. The video recording did not capture the shooting and, as
the homeowner who provided the video recording testified,
identification of persons depicted was “nil to none.” The
homeowner also testified that, although his surveillance camera
could capture images in color, at night the images were in black
and white and sometimes ghostly. Thus, the video recording was
in black and white and had no audio.
The juvenile court denied J.R.’s Trombetta/Youngblood
motion because the officers involved did not demonstrate bad
faith, the video recording was not in their possession, and J.R.
did not establish that the video recording was exculpatory.
The United States Supreme Court has held that law
enforcement agencies have a duty, under the due process clause
of the Fourteenth Amendment, to preserve evidence “that might
be expected to play a significant role in the suspect's defense.”
(California v. Trombetta, supra, 467 U.S. at p. 488.) To fall
within the scope of this duty, the evidence “must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” (Id. at p. 489.) It is the defendant's burden to
establish that the evidence had exculpatory value. (People v.
Alexander (2010) 49 Cal.4th 846, 879.)
The state's responsibility is further limited when the
defendant's challenge is to “the failure of the State to preserve
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evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might
have exonerated the defendant.” (Arizona v. Youngblood, supra,
488 U.S. at p. 57.) In such cases, “unless a criminal defendant
can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process of law.” (Id. at p. 58.) We review a trial court's ruling on
a Trombetta/Youngblood motion for substantial evidence.
(People v. Montes (2014) 58 Cal.4th 809, 837.)
J.R. did not establish that the video recording was
materially exculpatory rather than “ ‘potentially useful.’ ”
(Illinois v. Fisher (2004) 540 U.S. 544, 549.) Even if Trombetta
and its progeny applied to a claim of a failure to collect evidence,
Trombetta speaks of evidence whose exculpatory value is
apparent. (Arizona v. Youngblood, supra, 488 U.S. at p. 56;
People v. Montes, supra, 58 Cal.4th at p. 838.) Thus, J.R. was
required to establish that the police acted in bad faith in failing
to preserve the recordings, i.e., that they were aware that the
recordings had exculpatory value and allowed their destruction.
This J.R. failed to do. At best, the officers' actions were
negligent, but negligence does not amount to bad faith.
Substantial evidence supports the trial court's implied finding
that the officers did not act in bad faith.
II.
J.R. asserts that the juvenile court erred by denying his
Pitchess motion to discover evidence of police misconduct.
Prior to adjudication, J.R. filed a discovery motion alleging
on information and belief that one or more of the police officers
involved in his arrest and the investigation refused to collect or
destroyed exculpatory evidence, i.e., a color videotape of the
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crime. The juvenile court denied the motion because the
declaration in support of the motion did not set forth a plausible
factual scenario for the discovery. The court limited J.R.’s motion
to “the four corners of the declaration on information and belief.”
A defendant must establish good cause for discovery of a
police officer's confidential personnel records that contain
information relevant to the defense. (Pitchess v. Superior Court,
supra, 11 Cal.3d at pp. 537-538.) Good cause is a “ ‘relatively low
threshold’ ” and requires a showing that 1) the personnel records
are material to the defense, and 2) a stated reasonable belief that
the records contain the type of information sought. (People v.
Thompson (2006) 141 Cal.App.4th 1312, 1316.) Good cause
contemplates “a logical link between the defense proposed and
the pending charge.” (Warrick v. Superior Court (2005) 35
Cal.4th 1011, 1021.)
Defendant must also establish a plausible factual
foundation for his defense. (Warrick v. Superior Court, supra, 35
Cal.4th at p. 1025.) To do so, the defendant “must present . . . a
specific factual scenario of officer misconduct that is plausible
when read in light of the pertinent documents.” (Ibid.) A
scenario sufficient to establish a plausible factual foundation “is
one that might or could have occurred. Such a scenario is
plausible because it presents an assertion of specific police
misconduct that is both internally consistent and supports the
defense proposed to the charges.” (Id. at p. 1026.) The factual
scenario need not be reasonably likely, persuasive, or even
credible. (Id. at pp. 1025-1026.) We review the denial of a
Pitchess motion for an abuse of discretion. (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 992.)
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The juvenile court properly denied J.R.’s Pitchess motion
because he did not establish that efforts to conceal or destroy any
exonerating videotape might have occurred. J.R. also did not
establish that an exonerating videotape may exist. He did not
offer a nonculpable explanation for his presence at the scene of
the attempted murder, as reflected in videotapes that were
presented to the court. The court did not abuse its discretion by
denying J.R.’s motion because he did not meet the standards for
discovery of the police personnel records.
III.
J.R. argues that the juvenile court abused its discretion by
committing him to DJF because it is not the least restrictive
placement for his rehabilitation. He adds that he suffers from
depression, suicidal ideation, and a chaotic home environment.
At the disposition hearing, the juvenile court provided a
lengthy statement of its reasoning. The court acknowledged that
it must balance the safety of the community with the welfare of
J.R., including necessary tools for his rehabilitation. The court
also noted that J.R.’s prior petition resulted from his
apprehension with a loaded firearm in a vehicle with a parolee,
and the present petition involved an escalating level of
criminality. The court then discussed its options – camp, a long-
term commitment, and DJF. It then concluded that the safety of
the community and J.R. compelled the selection of DJF as the
least restrictive placement.
“No ward of the juvenile court shall be committed to the
[DJF] unless the judge of the court is fully satisfied that the
mental and physical condition and qualifications of the ward are
such as to render it probable that he will be benefited by the
reformatory educational discipline or other treatment provided by
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the [DJF].” (Welf. & Inst. Code, § 734.) To order a DJF
commitment, there must be evidence demonstrating both a
probable benefit to the minor by the commitment and the
inappropriateness or ineffectiveness of less restrictive
alternatives. (In re A.R. (2018) 24 Cal.App.5th 1076, 1080-1081;
In re Jonathan T. (2008) 166 Cal.App.4th 474, 485.) We evaluate
the court’s exercise of discretion in committing a minor to the
DJF by focusing on punishment, public safety, and protection of
the minor. (In re J.C. (2017) 13 Cal.App.5th 1201, 1217; In re
Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.) We review the
court’s DJF commitment for an abuse of discretion. (In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330 [we do not
substitute our judgment for that of the juvenile court].)
The juvenile court did not abuse its discretion by the DJF
commitment. J.R. committed an extremely serious offense, i.e.,
attempted murder with a firearm. His victim suffered three
gunshot wounds. An earlier less restrictive placement for
personal possession of a loaded firearm was not successful. J.R.’s
detention report indicated that he admitted to drug use, removed
his ankle bracelet, and a bench warrant had been issued for his
violation of Community Detention Program terms. The court also
considered him a flight risk. J.R. engaged in fighting during
custody and a sharpened metal weapon was discovered in his
room. J.R. was an active member of Little Mobsters 13, and the
attempted murder was committed against a rival gang member.
In selecting a DJF commitment, the court relied upon the DJF
structured educational program, including job and occupational
training, and its integrated behavioral treatment program. The
court’s reasoned justification for its decision is not arbitrary or
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capricious. J.R.’s commitment to DJF is in his best interests and
that of public safety.
IV.
J.R. asserts that the juvenile court erred by imposing
discretionary probation conditions given his commitment to DJF.
He does not contest, however, the conditions requiring mandatory
victim restitution, DNA donation, and firearm restriction. The
Attorney General concedes.
“[T]he juvenile court’s imposition of discretionary
conditions of probation constitutes an attempt to regulate or
supervise the minor’s rehabilitation, a function solely in the
hands of [DJF] after the minor’s commitment. . . . Simply put,
the imposition of probationary conditions constitutes an
impermissible attempt by the juvenile court to be a secondary
body governing the minor’s rehabilitation.” (In re Allen N. (2000)
84 Cal.App.4th 513, 516.) It is of no import that similar
conditions may be imposed by DJF. (Ibid.) Accordingly,
imposition of the discretionary conditions was improper.
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DISPOSITION
We strike the conditions of probation imposed by the
juvenile court, except for conditions regarding mandatory victim
restitution, DNA donation, and firearm restriction, but otherwise
affirm. The court shall amend its records accordingly and
forward certified copies of the relevant documents to DJF.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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John C. Lawson II, Judge
Superior Court County of Los Angeles
______________________________
Steven A. Torres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
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