Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J219877, Amalia L. Meza, Judge; Lawrence Kapiloff, Judge (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.); and James H. Lauer, Jr., Juvenile Court Referee.
McCONNELL, P. J.
A second amended petition filed in juvenile court alleged Earl H. came within the provisions of Welfare and Institutions Code section 602 in that on March 30, 2008, he committed grand theft, a felony (Pen. Code, § 487, subd. (c)), and petty theft, a misdemeanor (Pen. Code, § 484). A subsequent petition filed in juvenile court alleged Earl came within the provisions of Welfare and Institutions Code section 602 in that on September 26, 2008, he committed grand theft, a felony (Pen. Code, § 487, subd. (c)). Both petitions pertain to the theft of cell phones from the hands of their owners.
The second amended petition contained additional counts that were later dismissed.
As to the second amended petition, the court reduced the grand theft count to a misdemeanor, and found the petty theft count was subsumed into the grand theft count. With those changes, the court made a true finding pertaining to the March 30, 2008 incident and sustained the petition. The court detained Earl with his mother on home supervision pending a further hearing.
The court later sustained the subsequent petition after making a true finding that Earl committed grand theft, a felony, pertaining to the September 26, 2008 incident. At a disposition hearing, the court placed Earl with his mother on the condition he complete 30 days of home supervision directed by the probation officer.
Earl's notice of appeal states he appeals the October 24, 2008 adjudication order on the second amended petition, the December 15, 2008 adjudication order on the subsequent petition, and the December 30, 2008 disposition order. In his briefing, however, he only addresses matters pertaining to the March 30, 2008 incident alleged in the second amended petition. He challenges the sufficiency of the evidence to support the true finding as to that incident, and contends the court erred by excluding impeachment evidence. He raises no issue as to the September 26, 2008 incident. We affirm all orders.
FACTS
On March 30, 2008, S.S. and her friend Halle P. went to the Parkway Plaza shopping mall in El Cajon, California, during daylight hours. Three males began following them. One of the males was wearing a red hooded sweatshirt and red shorts, one was wearing a gray hooded sweatshirt and red shorts, and one was wearing a white T-shirt and blue shorts. The males invited S.S. and Halle to meet them by Wal-Mart, and they responded, "Maybe." S.S. and Halle met the males by Wal-Mart, and as S.S. was texting on her cell phone, the one wearing the red hooded sweatshirt approached her from behind, grabbed her phone and ran off. S.S. did not see his face, but he was later identified by others as Earl.
After two to three seconds, S.S. ran after Earl He ran out of the mall and across a parking lot, with S.S. chasing after him and yelling for help. At some point, S.S. ran out of breath and lost sight of Earl. He was initially 25 to 30 feet from her, but the distance between them grew as the pursuit went on.
Brianna W. was also at Parkway Plaza that day. Brianna had known Earl for five to six months, and as she was in the parking lot walking toward Wal-Mart, he ran "right past" her about three feet away. She called his name and he turned around to see who was calling him, but he kept running. She got a good look at Earl's face, and she also recognized him from the red hooded sweatshirt he frequently wore. Brianna also saw S.S. and Halle "walk out of the mall and they were yelling something." At her mother's insistence, Brianna spoke to the police and gave them Earl's name.
Roderick Smith was also at Parkway Plaza that day. He was walking toward the mall entrance when he saw "two kids running," with Earl in his red hooded sweatshirt a few feet in front of S.S. S.S. screamed for help, saying he had stolen her cell phone, and Smith ran after Earl. Smith saw Earl's face for "a good six seconds" from a distance of about 20 feet. Smith was unable to catch Earl on foot, so he jumped into his car. Smith caught up with Earl, but he "took off in between the parking lots." Smith identified Earl in court.
At the trial of the second petition, pertaining to the September 26, 2008 incident at a high school, the evidence showed the 14-year-old victim had identified Earl in a "curbstone lineup" as the person who approached her from behind, snatched her cell phone out of her hand and ran off. She also identified him in court and testified she got a good look at his face during the incident, she had seen him previously, and she was 100 percent certain he was the thief. The arresting officer testified Earl denied stealing the cell phone, but he admitted he was aware of the theft and "he could probably get the phone back for us." Earl made several phone calls in the officer's presence and later an adult brought the stolen cell phone to the police station.
DISCUSSION
I
Sufficiency of the Evidence
A
"The proper test for determining a claim of insufficiency of the evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to [the orders] and must presume in support of the [orders] the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, supra,51 Cal.3d 294, 314.)
B
Earl contends the evidence is insufficient because neither S.S. nor Halle unequivocally identified him. S.S. was asked whether she had a chance to see the thief's face, and she responded, "Not really. I didn't really look at his face." She testified she had identified Earl because "[h]e looks familiar to me, like a little bit familiar." She was not referring to his face, but to "[h]is hair and stuff." She said that in court Earl looked taller than the thief, and she was unsure of whether he was actually the person wearing the red hooded sweatshirt. Halle testified she did look at the face of the boy in the red hooded sweatshirt, and she identified Earl as "probably" that person.
Both Brianna and Smith, however, positively identified Earl as the boy in the red hooded sweatshirt who S.S. was pursuing in the mall parking lot. "[I]dentification of the defendant by a single witness may be sufficient to prove the defendant's identity as the perpetrator of a crime." (People v. Boyer (2006) 38 Cal.4th 412, 480.) The evidence does not suggest that S.S. could have been chasing the wrong person — a boy in a red hooded sweatshirt who was not the thief. Notably, Brianna already knew Earl and he passed within about three feet of her. The court was impressed with her testimony, explaining she did not want to testify and "[t]here's no reason why she would have an ulterior motive that this Court can imagine. She knows Earl. He does wear red. She called him. He turned around. She saw his face. That is the clearest testimony."
The court's true finding is amply supported by circumstantial evidence that Earl stole S.S.'s cell phone. "Direct evidence is that which is applied to the fact to be proved, immediately and directly, and without the aid of any intervening fact or process: as where, on a trial for murder, a witness positively testifies he saw the accused inflict the mortal wound, or administer poison. Circumstantial evidence is that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred. The characteristics of circumstantial evidence... are, first, the existence and presentation of one or more evidentiary facts; and, second, a process of inference, by which these facts are so connected with the fact sought, as to tend to produce a persuasion of its truth." (People v. Goldstein (1956) 139 Cal.App.2d 146, 152-153.) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).)
Further, Earl's citation to defense evidence is unavailing. He testified he was at Parkway Plaza on March 30, 2008, but he was wearing a gray sweater, and he did not steal S.S.'s cell phone or run through the mall parking lot. Rather, he saw a person named "Aaron" steal the phone. His mother testified that Earl did not own a red hooded sweatshirt. The court obviously found their testimony unpersuasive, and it is not our province to reweigh the evidence or reassess the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Earl testified "the only red [hooded] sweatshirt I ever have is a Fresno State one, and that was my sister's." He added that "she didn't have that sweater at that time." At the later trial on the other cell phone theft, Earl was asked if he owned a red hooded sweatshirt, and he responded, "Yes. A Fresno State sweater."
Additionally, a security supervisor at Parkway Plaza, Lana Nasibyan, testified she had had contact with Earl at the mall between 50 to 60 times. She was not present during the March 30, 2008 incident, but she had reviewed a videotape taken that day of activity in front of Wal-Mart. She testified that Earl often wore hooded sweatshirts. She believed the person in the red hooded sweatshirt was not Earl, and instead he was the person wearing "the gray hoodie with the red shorts." She admitted, however, that the quality of the videotape "wasn't too great," and it included no facial shots. She conceded she had no idea what Earl was wearing on March 30, and she could not rule out having seen him previously in a red hooded sweatshirt. She explained he "is a little bow legged" and her identification was based on "the way [Earl's] legs are shaped." The court was obviously not swayed by Nasibyan's testimony. The court tried to cut to the chase by eliciting testimony from her that she saw a lot of people at the mall wearing hooded sweatshirts of various colors.
The evidence amply supports a finding beyond a reasonable doubt that Earl committed the theft.
II
Evidentiary Ruling
Earl contends the court improperly precluded him from asking Halle during cross-examination whether someone had told her after the theft of S.S.'s cell phone that he was the boy wearing the red sweatshirt. He submits the court's hearsay ruling was incorrect as the evidence was not offered to prove the truth of the statement, that Earl was actually the boy in the red sweatshirt, but to impeach Halle's testimony by showing she was predisposed to identify him. He contends the court's ruling violated his constitutional right to cross-examine a witness.
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations]." (People v. Waidla (2000) 22 Cal.4th 690, 725.) " '[A] trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) " '[A] "miscarriage of justice" should be declared only when the court, ' "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably more probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
Any possible error in the court's hearsay analysis here was harmless. Halle's testimony as to Earl's identity was weak, and the court's true finding was based primarily on Brianna's testimony.
DISPOSITION
The orders are affirmed.
WE CONCUR: HALLER, J, IRION, J.