Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. J211933, Margaret A. Powers, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
After a contested jurisdictional hearing, the juvenile court found true an allegation that minor had committed second degree felony burglary of a convenience store. (Pen. Code, § 459.) On appeal, minor contends that the court’s finding is not supported by substantial evidence. For the reasons set forth below, we shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
At approximately 1:30 a.m. on November 28, 2006, four young males entered the convenience store of a Chevron gas station. The first, a young Black man, entered separately from the other three. Shortly thereafter, the remaining three entered the store, standing in front of the cashier counter. The individual directly in front of the cashier was Black. That individual questioned the cashier regarding the purchase of a cigar. Neither employee on duty that night realized that the first individual who had entered the store was a companion of the other three until later on. All four individuals ran out of the store with stolen merchandise; however, both employees actually observed only the first individual run out of the store with purloined goods in his hands. The others had stolen merchandise in their pockets and jackets.
Both employees initially testified that all four individuals were Black. Minor is White. Both employees later watched a videotape apparently derived from the security camera in the store. Likewise, both looked at photographic stills taken from the videotape. The videotape and photographs showed that the four individuals consisted of two White males and two Black males. Those photographs were identified and entered into evidence as exhibits 1 through 19.
One employee ran out of the convenience store after the youths. While doing so, she observed a police officer in a patrol car. She flagged him down and the officer was immediately able to apprehend three of the suspects, including minor. The officer discovered stolen merchandise from the convenience store on the suspects and returned it to the other store employee. That employee identified minor at the scene of the arrest as one of the individuals involved in the incident. That employee also identified minor at trial as being one of those involved.
The People filed a juvenile wardship petition alleging minor had committed felony second degree commercial burglary. (§ 459.) The trial court found the allegation true, but reduced its classification to a misdemeanor upon the defendant’s motion. (§ 17, subd. (b).) The court placed minor on probation.
II. DISCUSSION
Minor contends his federal due process rights were violated because the evidence presented at the hearing was constitutionally insufficient for a true finding on the allegation. In particular, he maintains there was no testimony identifying minor as being an individual involved in the burglary. On the contrary, the evidence adduced below demonstrates substantial evidence from which the juvenile court could determine that the allegation against minor was true.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
It is readily apparent that neither witness in this case had an independent memory of the event sufficient to identify the individuals responsible, even limited to their respective races. However, there is nothing inherently nefarious about this, nor is such an identification required in order to support a true finding on the allegation.
Alice Finnigan initially testified that all four men burglarizing the store were Black. However, when confronted with photographic stills from the convenience store’s video surveillance tape, she acknowledged her mistake: “I honestly—my memory, I do not even remember two of them being light-skinned; maybe because my eyes were on the darker one because he was the one that was mainly stealing.” Thus, she recognized that she had erred in making the determination that all four were Black. The juvenile court, which likewise had the benefit of looking at these same photographic stills, therefore made the rational inference that at least one of the burglars was White.
Renato Piedras also gave conflicting testimony regarding the race of the four males who burglarized the store. Initially he testified that all four men were Black. Later, however, he testified that two of them were White and two Black. At yet another point, he testified that he did not actually have an independent memory of the races of those responsible for the incident; nonetheless, he was sure that two were Black and two were White because he had reviewed a videotape he made of the episode and had seen pictures taken from that video. He testified that it was difficult to remember the actual incident because the store frequently has such occurrences. He indicated he may have made a mistake in initially indicating all four were Black. Notwithstanding his lack of memory regarding the event, he testified he was sure that minor was one of those individuals who had participated in the robbery:
“[Prosecution] Was this the individual who attempted to buy the cigar?
“[Witness] I don’t remember, but he came with some [B]lack people.
“[Prosecution] Did you see this individual take some items from the store personally?
“[Witness] I don’t remember at this time, but it is on the video. It shows that.
“[Prosecution] So you saw them on the videotape this person taking property from the store?
“[Witness] What happens is that that happened a long time ago, but everything shows on the video because I record it, the video.” (Italics added.)
Here, it is obvious that this refers either to a photographic still of minor or that the prosecutor was pointing at minor himself. Thus, while Mr. Piedras was unable, from his own memory, independently to identify minor as the perpetrator, he was able to do so using the videotape and the photographic stills.
Moreover, Mr. Piedras testified that he made an on-the-scene identification of minor after he was arrested:
“[Witness] The officer asked me if I recognized the people that were caught, and they had three people sitting on the sidewalk. There they were caught with the things they were stealing.
“[Prosecution] Did you identify them at that time?
“[Witness] Uh-uh, yes.
“[Prosecution] And you identified all three of those individuals at that time?
“[Witness] Yes because of their clothes.
“[Prosecution] And was this one of the individuals you saw at that time? “[Witness] Yes. He was with two [B]lack guys I think.
“[Prosecution] But they all entered together?
“[Witness] Yes.
“[Prosecution] And then they ran off together?
“[Witness] Only three of them.” (Italics added.)
Here, again, it is apparent that the prosecutor was pointing to a picture of minor when he asked the witness if “this” was one of the individuals he witnessed at that time. Likewise, it makes no sense whatsoever that Mr. Piedras would be identifying minor solely as someone he recognized. Rather, placed properly within the context of Mr. Piedras’s testimony and the trial as a whole, it is clear that Mr. Piedras was identifying minor as one of the individuals who burglarized the store.
Indeed, on cross-examination, defense counsel asked him: “But you don’t know if it was him or not; correct?” To which Mr. Piedras replied, “Yes, it was him because he’s in the video.” Yet again, defense counsel asked Mr. Piedras, “So you don’t know; correct? Is that what you are saying?” To which he again responds, “That he’s not the one who participated in the robbery? He is the one.” (Italics added.) Here, again, it is apparent that “him” and “he” correspond with minor and that Mr. Piedras was identifying minor as one of those who burglarized the store.
All totaled, the juvenile court had before it Ms. Finnigan’s testimony that four individuals, two of whom were light skinned, robbed the store. Mr. Piedras indicated that minor was one of those individuals. He recognized minor from the videotape of the burglary as well as the photographic stills taken from that tape. Furthermore, Mr. Piedras had identified minor at the scene when the police officer arrested minor immediately after the burglary. When viewed in the light most favorable to the judgment, the trial court had substantial evidence with which to determine that the allegation against minor was true.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.