Opinion
A149929
01-30-2018
In re ZION Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ZION Y., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JW136029)
After a contested jurisdiction hearing, the juvenile court found true allegations that Zion Y. committed two counts of second degree robbery. On appeal Zion argues that the juvenile court erred by admitting two photographs into evidence and by declining to take judicial notice of an expert report, and that the court's findings should therefore be reversed. In the alternative, Zion argues that the matter should be remanded for the juvenile court to award credits for time he had spent in custody before the disposition hearing, which it failed to do. We conclude that Zion has not demonstrated error with respect to the evidentiary issues, but we agree that the juvenile court must calculate and award appropriate predisposition credits. Accordingly, we shall remand to the juvenile court for that purpose and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The district attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, alleging that Zion committed three felony counts of second degree robbery (Pen. Code, § 211) in August 2016, when he was almost 16 years old. Count 1 was for taking a wallet from Jose P. (Jose), count 2 was for taking a cell phone from Cesar L. (Cesar), and count 3 was for taking a cell phone from Catherine B. (Catherine). At that time, Zion was already a ward of the court, having admitted to one felony count of attempted second degree robbery (Pen. Code, §§ 664/212.5, subd. (c)), and one misdemeanor count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), in connection with a wardship petition that was filed under section 602 in 2013.
Further undesignated statutory references are to the Welfare and Institutions Code.
Only one cell phone was taken: Catherine's cell phone was taken from Cesar's pocket. Ultimately the juvenile court sustained counts 1 and 2 and found count 3 not true with respect to intent, stating that it would be unfair to convict Zion of two felonies for one cell phone.
A contested jurisdiction hearing was held over two days. The court heard testimony from Jose, who said he was employed at a restaurant near Fourth and Mission Streets in San Francisco. He left work at about midnight after a day's shift and walked toward his bus stop at Fifth and Mission with two friends, Cesar and Catherine. As they neared an alley, two young men approached them from behind. Jose described one of the men as looking "a little Hispanic," and later identified him from his face and his clothes as Jamil Alhalemi. Jose described the other as "Black," and identified him as Zion later that day. Jose also identified Zion at the hearing.
When Alhalemi and Zion made contact with Jose and his friends, Alhalemi pushed Cesar into a wall and asked him about his shoes and where he was from. Catherine said, "No," and "Leave him alone." At the same time, Zion told the group that Alhalemi had a gun and was going to shoot. Zion said, "Give him your stuff or he'll shoot you."
Alhalemi took Catherine's phone from Cesar's back pocket, despite Cesar's resistance. Next, Alhalemi searched Jose's rear pocket and removed his wallet, which contained a debit card and other cards including an identification card with Jose's photograph.
Alhalemi and Zion then fled, running up the alley. Catherine used Cesar's phone to call the police, and Officer Ryan Gonzalez arrived two minutes later.
Gonzalez testified that Jose, Cesar and Catherine told him that a gun was used to rob them of a cell phone and wallet. Gonzalez drove them around nearby streets in an unsuccessful attempt to find the people who robbed them, and then interviewed the three. They told him that the robbers were both young men, the Hispanic man wearing a two-toned gray jacket sweater and red boxers, the Black man wearing a black sweatshirt and red pants. Gonzalez provided information about the suspects to dispatch.
At the time of the robbery, Officer Franco Ragusa was on patrol in a police car with Officer O'Brien. He heard over police radio that a robbery had occurred at Fifth and Mission Streets, with a description of the suspects. Ragusa and O'Brien then parked their car at the corner of Jones and McAllister Streets, which Ragusa knew to be a high-crime area where stolen items are sold, and which was not far from the site of the robbery. About 10 or 15 minutes after Ragusa heard about the robbery on the police radio, he and O'Brien saw a Hispanic male with a gray sweatshirt and black hoodie, who was later determined to be Alhalemi, and a Black male with "what looked like a dark gray sweatshirt," who Ragusa later identified as Zion, walking past them up Jones Street. Ragusa testified that the two men were together and "sort of matched" the description of the suspects that he had heard on the radio.
Ragusa and O'Brien advised dispatch of their observations and then followed the two men up Jones Street. They contacted Alhalemi within a few blocks, searched him for weapons, and found none. They saw Zion run into a nearby parking garage.
Officer Ian Goold testified that he was on patrol with his partner at the time of the robbery, heard over the police radio that Ragusa and his partner had spotted two suspects, and drove over to assist them. After Alhalemi was handcuffed, Goold and his partner began to look for the second suspect, who they had heard was a black male wearing a dark-colored jacket or hoodie and red pants. Goold saw an attendant at a nearby parking garage subtly gesture into the garage. The officers entered the garage, saw Zion, who matched the description of the suspect, and detained him. As the officers placed Zion in handcuffs, Goold saw the handle of a pistol sticking out of Zion's right jacket pocket. Goold removed the pistol, and determined that it was an imitation Glock. As soon as Goold took hold of it, Zion said something to the effect of "It's fake. It's fake. I fucked up." Zion told Goold that he carried the fake gun to intimidate other people, and that other people in the streets carry guns and by having the imitation he could display it and keep himself safe. Goold found other property on Zion, including a wallet and cell phone. At the jurisdiction hearing, Goold identified a photograph, "Exhibit 6," which showed a gun, two wallets, and two cell phones resting on the hood of a patrol car, as showing the property he took from Zion. Exhibit 6 was admitted into evidence over the defense objection that the photograph was "not authenticated and there's no indication when this was taken or where all this property came from."
After Zion and Alhalemi were detained, a "cold show" was arranged in which Jose, Cesar and Catherine were taken separately in a squad car to view each of the suspects without being seen themselves. Jose identified Alhalemi and Zion as the men involved in the robbery.
After the cold show, the police showed Jose a wallet that had been taken from one of suspects, and Jose identified it as his. His debit card and other cards, including a school identification card were missing. At the jurisdiction hearing, Jose identified a photograph, "Exhibit 1," as showing the wallet that was taken from him with his Clipper card and his consular identification card, which were in the wallet when it was taken. Exhibit 1 was admitted into evidence over the defense objection that the photograph was "not authenticated [¶] . . . [¶] [i]n terms of who took it or when or any of that."
On the second day of the hearing, after all witness testimony was presented, Zion's counsel asked the court to take judicial notice of the report of a neuropsychological examination that had been prepared by a court-appointed expert and received just a day or two before. The juvenile court judge asked, "What relevance does that have to jurisdiction? I understand it for disposition." Zion's counsel responded, "I'm going to reference it in my closing." The district attorney objected that the report had just been received, and that it was prepared "after the incident occurred and I don't think it has any relevance to this incident." The juvenile court sustained the objection.
The juvenile court sustained two of the charged counts: count 1, second degree robbery of Jose's wallet, and count 2, second degree robbery of a cell phone from Cesar. A disposition hearing was held about two weeks later, as we describe below. Zion timely appealed.
DISCUSSION
A. Evidentiary Issues
On appeal, Zion argues that the juvenile court erred in admitting Exhibits 1 and 6, absent "adequate authentication and foundation and proof of a chain of custody," and that the juvenile court erred in declining to take judicial notice of the expert's report on the neuropsychological examination, which prevented Zion from presenting a full defense. He claims that these errors violated his right to due process and a fair trial.
1. Exhibits 1 and 6
a. Applicable Law and Standard of Review
"The general rule is that a photograph is admissible upon a showing that it accurately depicts what it purportedly shows. ([People v. Bowley (1963) 59 Cal.2d 855, 862 (Bowley)]; see Evid. Code, §§ 250 [a photograph is a '[w]riting'], 1400 ['Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.'].) 'This is usually shown by the testimony of the one who took the picture. However, this is not necessary and it is well settled that the showing may be made by the testimony of anyone who knows that the picture correctly depicts what it purports to represent.' (People v. Doggett (1948) 83 Cal.App.2d 405, 409; see Bowley, supra, 59 Cal.2d at pp. 860-861 [citing Doggett with approval].)" (People v. Chism (2014) 58 Cal.4th 1266, 1303 (Chism).)
"Once properly authenticated and admitted into evidence, a photograph may be used as demonstrative evidence to support a witness's testimony or as probative evidence of what is shown. (Bowley, supra, 59 Cal.2d at pp. 860-861.) A trial court's ruling on the admissibility of evidence of photographs will not be disturbed on appeal absent an abuse of discretion. (People v. Rountree (2013) 56 Cal.4th 823, 852.)" (Chism, supra, 58 Cal.4th at p. 1304.)
b. Analysis
Exhibit 1 was a photograph depicting a wallet, identification card and Clipper card. Jose testified that the items in the photograph were taken from him in the robbery and were later shown to him by the police. Zion's counsel objected that the photograph was "not authenticated [¶] . . . [¶] [i]n terms of who took it or when or any of that." Noting that the photograph depicted something that Jose had described, the juvenile court admitted the exhibit into evidence over the objection. We see no abuse of discretion here: the photograph was authenticated by Jose's identification of the items in the photograph. (Chism, supra, 58 Cal.4th at p. 1303.) Contrary to Zion's argument, the authentication of the photograph does not necessarily depend upon offering evidence to show when or where it was taken. (Id. at pp. 1303-1304.)
Exhibit 6 was a photograph depicting a number of objects that, according to Officer Goold's testimony, were items he took from Zion when Zion was detained at the parking garage just after the robbery. Zion's counsel objected that the photograph was "not authenticated and there's no indication when this was taken or where all this property came from." The juvenile court overruled the objection, explaining, "It's authenticated by the fact that he has identified the items in it." We agree with the juvenile court. Again, the authentication of a photograph does not necessarily require a showing of when the photograph was taken. (Chism, supra, 58 Cal.4th at pp. 1303-1304.) And contrary to the statement made by Zion's counsel in her objection, there was a clear indication of where the property came from: Goold testified that he took it from Zion.
Zion also argues on appeal that the juvenile court erred by admitting the photographs in the absence of the district attorney's establishing a chain of custody. This argument was forfeited, because no objection regarding chain of custody was made below. An objection to evidence must state the specific ground of the objection, and an " 'appellate court's review of the trial court's admission of evidence is then limited to the stated ground for the objection. (Evid. Code, § 353.)' (People v. Kennedy (2005) 36 Cal.4th 595, 612.) 'What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.' (People v. Partida (2005) 37 Cal.4th 428, 435.)" (People v. Abel (2012) 53 Cal.4th 891, 924.)
Furthermore, issues of chain of custody do not properly apply. The purpose of establishing a chain of custody is to authenticate tangible evidence that is susceptible to being altered or substituted, such as blood samples or drugs. (See, e.g., People v. Jimenez (2008) 165 Cal.App.4th 75, 81 ["Like blood and fingerprint evidence, DNA samples that are relevant to a case are indistinguishable from other samples that have no connection at all to a case. Evidence like that requires expert analysis the accuracy of which is entirely dependent on a proper chain of custody."].) Zion does not argue that the photographs themselves have been altered or tampered with.
Instead, Zion points out that, considering all the evidence, a question remains about the items depicted in the photographs: how do we know that the wallet Jose identified as the wallet that was stolen from him in the robbery (shown in Exhibit 1) was among the wallets found on Zion (shown in Exhibit 6)? This goes to the weight of the evidence, but not to its admissibility. When the district attorney claimed that the wallet in Exhibit 1 was one of the wallets depicted in Exhibit 6, that was part of closing argument, not evidence, as the juvenile court clearly understood. When Zion's counsel said, "Objection. There's no evidence of that," the juvenile court responded, "Overruled. This is argument."
Officer Goold testified he took items from Zion, put them in a bag, and gave them to another officer, Sergeant Pedroza. Officer Gonzalez testified that a sergeant brought him items that were "obtained by one of the subjects," including a wallet that was shown to Jose, who identified it as his. Perhaps, as the Attorney General suggests, the juvenile court inferred that Sergeant Pedroza brought the property taken from Zion to Officer Gonzalez. But even without testimony directly linking the items in Exhibits 1 and 6, there was substantial evidence to support the juvenile court's findings that the robbery allegations in counts 1 and 2 were true. The district attorney presented evidence that a group of people were robbed of a wallet and cell phone with the threat of being shot; that Zion was seen by the police a few blocks away shortly after the robbery and fled from the police on foot. Zion was found hiding in a parking garage and in possession of an imitation gun, two cell phones, and two wallets. As the police took items from him, he said he had "fucked up." Jose identified Zion as one of the robbers shortly after Zion was arrested, and at the hearing.
2. Expert Report
a. Applicable Law and Standard of Review
The Evidence Code authorizes a trial court to take judicial notice of the records of any court in this state. (Evid. Code, § 452, subd(d)(1).) Although courts may take judicial notice of the existence of court documents, they do not take judicial notice of the truth of hearsay statements contained in those documents. (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 (Johnson & Johnson).) "Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action, without requiring formal proof of the matter." (2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2017) Judicial Notice, § 49.1, p. 49-4.) "The fundamental premise of judicial notice is that the matter noticed is one of law or fact that cannot reasonably be disputed." (Id., § 49.5, p. 49-5.) Matters subject to judicial notice must meet the same relevance requirement as any other evidence. (Id., § 49.6, p. 49-5.)
We review the trial court's denial of a request for judicial notice under the abuse of discretion standard. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753-755.)
b. Analysis
On appeal, Zion contends that the expert report "provided crucial information which tended to show that, at the time of the robberies, he did not have the requisite specific intent because of his mental and cognitive impairments." He did not identify below, and does not identify in his opening brief on appeal, any passages in the report that tend to show that he could not have the requisite intent, yet he claims that he has "demonstrated" that the report was "directly relevant to negate [his] specific intent to commit the crimes, and therefore admissible," and he argues that by refusing to take judicial notice of the expert report as a court record under Evidence Code section 452, subdivision (d), the juvenile court denied him his right to "present critical materials in his defense," and therefore violated his constitutional rights. This argument is meritless.
At trial, Zion's counsel was vague as to the purpose for which she requested judicial notice of the expert report. It is clear, however, that she wanted the court to take judicial notice of the contents of the report, and not just the fact that the report had been submitted. In her closing argument, she said, "given the entire court record, which I think the court can review and take notice of, that Zion is a young 15-year-old cognitively-impaired young—" when the district attorney objected, and the trial court said, "Sustained." Yet earlier, when she was asked how the report was relevant to the jurisdiction hearing, Zion's counsel said only that she was planning to reference the report in closing argument. Zion's counsel did not offer any explanation of how she would reference the report in closing, or for what purpose, nor did she offer any indication of what part or parts of the report, which itself is hearsay, might be appropriate for judicial notice. In these circumstances, we have no difficulty concluding that the juvenile court acted within its discretion in refusing to take judicial notice of the contents of the expert report. (Johnson & Johnson, supra, 192 Cal.App.4th at p. 768.)
Zion concedes that it would be improper to admit the entire report, and that the report is hearsay. In his reply brief on appeal he contends that the parts of the report that describe the tests that the expert administered and the results of those tests would be admissible under the hearsay exception for business or official records under Evidence Code sections 1271 or 1280. He provides no support for these assertions, and he entirely ignores the Attorney General's observation that the information and conclusions in the report are subject to dispute, which disqualifies them for judicial notice. Zion cites no authority to suggest that the juvenile court could have properly taken judicial notice of the contents of an expert report like the one here for the purpose of showing that Zion lacked the requisite specific intent to commit the crimes alleged.
Zion points out that a defendant may introduce expert testimony about a defendant's psychological diagnosis or mental condition to show the absence of a particular mental state. True enough. But nothing prevented Zion from introducing such expert testimony, and in particular nothing prevented Zion from calling the author of the report as a witness. And it bears repeating that Zion does not explain how anything in the report could constitute evidence that he lacked the requisite specific intent. Consequently, we find no merit in Zion's argument that the exclusion of the expert report prevented him from presenting evidence that was crucial to his defense.
3. Cumulative Error
Because we conclude that the juvenile court did not err in admitting Exhibits 1 and 6 or in declining to take judicial notice of the expert report, we do not reach Zion's argument that the court's errors, even if individually harmless, have a cumulative effect that reflects a miscarriage of justice. B. Predisposition Credits
At the disposition hearing, the juvenile court redeclared Zion a ward of the court, removed him from his guardian's custody, and committed him to the care, custody and control of the probation department for out-of-home placement. Zion argues, and the Attorney General agrees, that the juvenile court erred by failing to award Zion credit for time he spent in custody before the disposition hearing.
Under section 726, when a "minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (§ 726, subd. (d)(1).) The disposition order is silent as to the maximum period of confinement, but at a subsequent hearing the court stated that the maximum confinement time on "all petitions" is seven years. The record indicates that the juvenile court was referring to the 2013 petition, in which the juvenile court sustained counts of attempted robbery and assault, and to the petition filed in connection with the August 2016 robberies.
"[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. (Pen. Code, § 2900.5, subd. (a); In re Eric J. (1979) 25 Cal.3d 522, 533-536 ([Eric J.)].) It is the juvenile court's duty to calculate the number of days earned, and the court may not delegate that duty. (Pen. Code, § 2900.5, subd. (d); People v. Vargas (1988) 204 Cal.App.3d 1455, 1469, fn. 9.)" (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 (Emilio C.).) Further, "[W]hen a juvenile court elects to aggregate a minor's period of physical confinement on multiple petitions . . ., the court must also aggregate the predisposition custody credits attributable to those multiple petitions. (Eric J., supra, 25 Cal.3d 522.)" (Emilio C., supra, 116 Cal.App.4th at p. 1067.) The record reflects that before the disposition hearing Zion spent time in custody on both petitions, but that he was not given credit for those periods of confinement. We agree with the parties that it is appropriate to remand the matter to the juvenile court to calculate Zion's predisposition credits.
Citing In re J.M. (2009) 170 Cal.App.4th 1253, 1256, Zion notes that he should be awarded credit for time spent in juvenile hall from disposition through actual transportation to a placement. We agree that Zion is entitled to credit against his maximum term of confinement for that period of time, but there was no error on the part of the juvenile court in failing to calculate those credits at disposition: the juvenile court could not have made such a calculation because the credits had not yet accrued. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1238.)
DISPOSITION
The matter is remanded for the juvenile court to calculate and award Zion all predisposition credits to which he is entitled. The judgment is otherwise affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.