Opinion
A158987
07-26-2021
In re M.J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.J., Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. JV03161801
SANCHEZ, J.
Appellant M.J. appeals from the juvenile court's judgment sustaining a petition pursuant to Welfare and Institutions Code section 602. Judgment was entered following the court's finding that appellant had committed grand theft of a cell phone valued in excess of $950. Appellant contends the evidence was insufficient to establish that he stole the victim's phone and that the phone was worth more than $950. In a related petition for habeas corpus, he also argues that his trial counsel was ineffective in failing to proffer evidence of the phone's diminution in value. We agree with appellant that the evidence was insufficient to sustain the petition and reverse.
By a separate order issued today, we dismiss appellant's related petition for habeas corpus relief (case No. A161310) as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2019, the Santa Clara County District Attorney filed a Welfare and Institutions Code section 602, subdivision (a) wardship petition alleging that appellant, then age 16, had committed felony grand theft. (Pen. Code, § 487, subd. (a).) A contested jurisdictional hearing was held at which the following evidence was adduced.
Further undesignated statutory references are to the Penal Code.
A. Prosecution's Case
At around midnight on October 28, 2018, X.L. and his two friends J.G. and Z.C. were seated at a table inside the American Cafe at the Great America amusement park. X.L. placed his cell phone on the table. The phone was an iPhone X he had purchased new almost a year earlier for around $1, 300. The lighting conditions were bright inside the cafe, and streetlights illuminated the view outside.
X.L. testified through a Mandarin Chinese interpreter. On the first day of the hearing, X.L. expressed frustration with the translator's skills. A different translator was used when X.L. testified again at a later date.
About 15 minutes after the trio sat down, someone suddenly grabbed X.L.'s phone from the table. X.L. noticed a person's shadow about a half second before his phone was taken, but he did not have a clear view of the suspect. After grabbing the phone, the suspect immediately turned around and ran outside through the cafe doors. X.L. initially testified that he saw his phone in the suspect's hand, but later clarified that while he saw someone take his phone, it happened so quickly that he did not see the phone in the thief's hand.
X.L. quickly stood up and chased the suspect out of the restaurant, telling Z.C. to call the police. X.L. gave chase for approximately 60 to 70 meters. When he was about 15 meters from the cafe, X.L. reached out to grab the suspect but the suspect turned and swiped X.L.'s hand away. As they ran, X.L. told the suspect to return the phone and the suspect turned back to argue with him. The suspect then joined a group of four or five African-American teenagers, who all appeared to be around 16 years old. X.L. attempted to grab the suspect to retrieve his phone, but the suspect's friends pushed him away forcefully and ordered him to stay back. While this was occurring, the suspect raised his hands in the air and denied that he had X.L.'s phone. Park security and police officers arrived less than a minute later and detained the suspect, who X.L. later identified as appellant. One or two of appellant's companions stayed on the scene and were questioned by the police. The others were released, and appellant was detained. The phone was never recovered.
At the contested jurisdictional hearing, X.L. identified appellant as the person who had taken his phone. X.L. acknowledged that he did not see the suspect's face when the phone was stolen, and he did not see the phone in the suspect's hands as he was chasing the suspect, but he was sure about his identification because X.L. saw appellant's face when he turned to escape X.L.'s grasp in the outside courtyard. X.L. testified that he never lost sight of the suspect at any point from the time the chase commenced out of the cafe to when X.L. caught up with the suspect and the group of teenagers. Appellant kept repeating that he did not take the phone, but X.L. did not believe him because appellant was the only person X.L. had chased. X.L. was not certain, but he believed the suspect had been wearing a red jacket. A photograph was later offered into evidence showing that appellant was actually wearing a green or dark-colored jacket that night.
Z.C. testified that an African-American male came behind him and took X.L.'s iPhone from the table. Z.C. was unable to describe the person's age, hair, or clothing. Z.C. pointed to the suspect and X.L. chased him out of the cafe and into the courtyard area. Z.C. followed, pointing to the suspect and shouting, “Thief. Catch him.” Z.C. then called the police. A crowd of African-Americans, possibly teenagers, gathered around X.L. and the suspect. They pushed X.L. away from the suspect, saying he was not the person who took the phone. It was at this point that Z.C. saw the suspect's face. Z.C. later identified appellant to the police. He identified appellant again at the jurisdictional hearing.
On cross-examination, Z.C. clarified that he had not seen the suspect's face when the phone was taken. He followed after X.L. and saw four or five people pushing X.L. Appellant had his palms out, repeating, “It's not me. It's not me.” Z.C. was certain appellant was the person who had taken the phone because, from the time the phone was stolen from the table to when they went outside, he never lost sight of the suspect.
J.G. testified that she heard Z.C. yell “thief” inside the cafe. She did not see the suspect take X.L.'s phone, but she did see someone run out of the cafe. She only saw his back and did not remember what he was wearing. When asked what his skin color was, she said: “Umm, they're all Black; right?” She said that she saw the suspect's skin color on his neck and his arm. When she ran outside she saw that the suspect had partners. The partners pushed X.L. and she warned X.L. to retreat. She identified the suspect to the police that night, but was unable to identify appellant at the hearing.
At the close of the prosecution's case, appellant moved for dismissal based on lack of evidence. The motion was denied.
B. Appellant's Case
Officer Nicholas Schatz testified that he responded to a theft call at Great America around midnight on October 28, 2018. When he arrived, appellant had already been detained by security. He was sitting on a bench in the employee area at the back of the cafe. Officer Schatz spoke with the victim and appellant. When shown a photograph of appellant sitting on the bench, Officer Schatz stated that the picture accurately depicted appellant's clothing. Officer Schatz did not recall X.L. stating that he had been pushed by a group of teenagers.
L.B. testified that he had known appellant for three years. They went to the same high school and played sports together. L.B. was also at Great America on the night of the incident. He joined up with appellant and they later went to the American Cafe to get some water. As they were leaving, he heard a loud noise of chairs being pushed out of the way and saw people running outside. When they were outside the cafe, an Asian man started grabbing appellant and speaking to him angrily, though L.B. could not understand what he was saying. Appellant had his hands in the air and appeared confused. Security came and L.B. went with appellant behind a fence where they later spoke with the police. The police let L.B. go, but detained appellant. L.B. never saw an iPhone.
C. Closing Arguments and Decision
During closing argument, appellant's counsel asserted that this was a case of mistaken identity. He noted X.L. had testified that the person who took his phone was wearing a red jacket, however, a photo taken that night showed appellant's jacket was either dark green, black, or gray. Counsel also noted that even though the witnesses said they never lost sight of the suspect, X.L.'s phone was not found on appellant. They also testified that they did not see the face of the person when the phone was taken, and there was no testimony that appellant had either passed the phone to another person or thrown it away. Counsel stated that this was a case of mistaken identity and possibly racial profiling, as there were many African-American teenagers near the cafe that night.
After taking the matter under submission, the juvenile court sustained the petition. The court found X.L., J.G., and Z.C. to be credible witnesses, though the court acknowledged they were not able to address some important points. For example, X.L. testified inconsistently as to how far the chase had proceeded outside the cafe. However, the court focused on the key aspects of X.L.'s testimony: once Z.C. alerted him to the theft, X.L. immediately pursued the person he saw running out of the cafe, and in his encounter with the suspect and the group of teenagers, he saw appellant's face. The court also found Z.C.'s testimony to be “very credible.” Z.C. testified that he never lost sight of the person who took the phone, and stated he saw appellant's face once they were outside. The court found L.B.'s testimony to be “less credible.” The court summarized the state of the evidence as follows: “There are at least two persons who see someone running out of the American Cafe which they are very clear that they later see the face of that person, and it is [M.J.].... [¶] Given the fact that both witnesses are very clear about someone taking the phone, the fact that although they... didn't see the face of the person who took the phone inside the cafe, they... never lost sight of that person, and they did see his face outside, and that that person was [M.J.].” The court ordered the matter transferred to Alameda County, the county of appellant's residence, for disposition.
At the October 28, 2019 disposition hearing, the juvenile court followed the recommendation of the probation department and placed appellant on informal probation, pursuant to Welfare and Institutions Code section 725, subdivision (a). The court set the informal probation to expire in five and a half months and, among other terms of probation, ordered appellant to complete 25 hours of community service. This appeal followed.
II. DISCUSSION
Appellant contends there was insufficient evidence to support the juvenile court's finding that he stole X.L.'s iPhone. We agree.
“Our review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is ‘to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.' [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt. [Citation.] The test is not whether guilt is established beyond a reasonable doubt, but whether any ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) We must draw all factual inferences the fact finder could reasonably deduce from the evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Although inferences must be derived from evidence and not mere speculation, reversal is warranted only if there is no hypothesis whatsoever to support the fact finder's verdict. (People v. Raley (1992) 2 Cal.4th 870, 891; Zamudio, at p. 357.)
The crime of grand theft is accomplished by “ ‘the taking of personal property [valued at more than $950] from the owner... into the possession of the criminal without the consent of the owner or under a claim of right, [and] the asportation of the subject matter [with] the specific intent to deprive the owner of his property wholly and permanently.' ” (People v. Whitmer (2014) 230 Cal.App.4th 906, 922.) The parties do not dispute that X.L.'s phone was taken from the table without his consent. The principal question in this appeal is whether sufficient evidence was adduced at trial establishing that appellant was the person who committed the crime.
Appellant correctly observes that while the prosecution's witnesses identified him as the perpetrator, none of them saw him take the phone. All three witnesses conceded that they did not see the face of the suspected thief. Z.C. identified the person as African-American, but could not describe the person's age, hair, or clothing. X.L. merely observed a shadowy figure, while J.G. saw a person with an exposed patch of dark skin. Additionally, none of the witnesses ever saw appellant in possession of the phone. While X.L. initially testified that he saw his phone in the suspect's hand, he later clarified that the theft happened so quickly he did not see the phone in the thief's hand. At most, this testimony established that immediately after the phone was taken, they witnessed a person running out of the cafe who they believed was the cell phone thief and gave chase.
The primary evidence the juvenile court relied upon to sustain the petition was testimony from X.L. and Z.C. that they never lost sight of the suspect as they were pursuing him from the cafe, and they eventually identified the person they had been following as appellant. Appellant argues that the identification evidence is inherently improbable because Z.C., who stated that he never took his eyes off the suspect, did not see appellant discard the phone or pass it off to another person. Yet when park security and the police arrived within a minute or two of the theft, appellant did not have the phone. Appellant also notes that he did not flee the scene and showed his empty hands to his accusers as they pursued him. He contends this is a case of mistaken cross-racial identification because other African-Americans were present at the cafe, and because X.L. testified that appellant was wearing a red jacket, when he was actually wearing a green (or dark-colored) jacket. Appellant's arguments have merit.
While it is the juvenile court, and “not the appellate court which must be convinced of the defendant's guilt” (People v. Bean (1988) 46 Cal.3d 919, 933), the record must contain evidence that is sufficient to have convinced the lower court of the minor's guilt beyond a reasonable doubt. The evidence in the record must be “solid, substantial, and [must] reasonably inspire confidence in defendant's guilt.” (People v. Blakeslee (1969) 2 Cal.App.3d 831, 839.) “Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755 (Redmond).)
Although X.L. and Z.C. testified that they were certain they had chased the thief because they kept him within their sight the entire time, they also testified that they never saw appellant take the phone, never saw the phone in appellant's possession, and that police and park security arrived less than a minute later and detained appellant. However, there was no testimony that appellant had either passed the phone to an accomplice or discarded it, and the victim's phone was not found on appellant's person. The phone was never in fact recovered. During opening argument, the prosecutor claimed the evidence would show that the victim saw appellant pass the phone to an unidentified person, but the prosecutor did not present any evidence in support of this assertion, and the juvenile court did not comment on this omission when rendering its ruling.
The Attorney General argues that substantial evidence supports the juvenile court's finding because X.L. testified he saw appellant's face after his phone was taken and saw his phone in appellant's hand. The Attorney General overlooks X.L.'s testimony clarifying that while he observed someone take his phone, it happened so quickly he did not actually see the phone in the suspect's hands.
The Attorney General also argues that any purported flaws in the witnesses' identification do not warrant reversal because “[i]t is entirely possible the witnesses focused on appellant's face, not what he was doing with the phone, and appellant had the opportunity to discard the phone out of the witness[es]' sight before X.L. caught up to him outside the restaurant.” While we must draw all reasonable inferences from the evidence in support of the judgment, inferences cannot be based on suspicion, imagination, surmise, conjecture, guesswork or supposition. (People v. Davis (2013) 57 Cal.4th 353, 360.) Here, the evidence supports the inference that appellant did not throw the phone away or hand it off to another person. X.L. and Z.C. repeatedly testified that they never lost sight of the suspect they were pursuing, and their pursuit lasted no more than one to two minutes before park security and police arrived. Yet neither witness saw appellant get rid of the phone or pass it to a confederate during the brief chase. The Attorney General's speculation that both witnesses might have overlooked this critical detail does not amount to substantial evidence. (See People v. Ramon (2009) 175 Cal.App.4th 843, 851.)
While the evidence here raises a suspicion that appellant may have been involved in the theft or knew who committed it, a “suspicion, no matter how strong, of the guilt of a person charged with a crime is not sufficient to sustain a verdict and judgment against him.” (People v. Draper (1945) 69 Cal.App.2d 781, 786; see Redmond, supra, 71 Cal.2d at p. 756 [overturning burglary conviction despite victim's positive identification of the defendant based on his voice and the expression in his eyes].)
Because we have concluded that substantial evidence does not support the juvenile court's true finding that appellant committed grand theft, our conclusion is the equivalent of an acquittal. Appellant may not be retried on the allegation. (People v. Seel (2004) 34 Cal.4th 535, 545-550; In re Johnny R. (1995) 33 Cal.App.4th 1579, 1585.) Accordingly, we remand the case to the juvenile court with directions to dismiss the petition. (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1465-1466.)
In light of our holding, we do not address appellant's remaining contentions concerning the value of the iPhone.
III. DISPOSITION
The judgment is reversed. The case is remanded to the juvenile court with directions to dismiss the underlying petition.
WE CONCUR: Margulies, Acting P.J., BANKE, J.