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In re Alberto M.

California Court of Appeals, Second District, First Division
Mar 26, 2008
No. B197363 (Cal. Ct. App. Mar. 26, 2008)

Opinion


In re ALBERTO M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALBERTO M., Defendant and Appellant. B197363 California Court of Appeal, Second District, First Division March 26, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. FJ39640 Shep Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.

MALLANO, Acting P. J.

Alberto M. appeals from the order of wardship entered following a finding that he committed felony vandalism. He contends that the evidence was insufficient to support the finding, that certain of his testimony was improperly stricken, and that it was improper to set a maximum period of confinement. We affirm the order of wardship and order the juvenile court to strike the maximum period of confinement.

BACKGROUND

Alicia Acevedo and her husband, Ruben Acevedo, reside upstairs in a building in Los Angeles. The minor, his mother, and his younger siblings reside downstairs in the same building.

Mrs. Acevedo testified that around 6:30 p.m. on September 3, 2006, she and Mr. Acevedo returned home from an outing. They parked their car, which had minor scratches on it, in their usual parking space behind the building. After going inside, Mrs. Acevedo looked out the window and saw the minor’s siblings on bicycles near the car. She also heard the minor’s voice but could not see him. Mr. Acevedo told the children to get away from the car so they would not scratch it. When the children did not go away, Mr. Acevedo moved the car into a different position in its parking space “so that they cannot go around the car anymore.” Afterward, again looking out the window, Mrs. Acevedo saw the minor pass by the car and make three slashing motions on the driver’s side of the car. The Acevedos went outside and saw that the car had three deep scratches that had not been there before. The police were called. While waiting for officers to arrive, the Acevedos went to talk to the minor’s mother “to tell her that they had already scratched the car again.” When the police arrived, Mr. Acevedo spoke with them.

Mr. Acevedo testified that he got estimates of $1,700 and $3,000 to repair the damage caused by the scratches. He and Mrs. Acevedo told the minor’s mother that “they damaged the car,” explaining that “in the past, they had caused damage, but lighter damage.” The “they” referred to “[t]he lady’s children.”

The minor testified that he came home from his girlfriend’s house between 7:30 and 8:30 that evening. He was home when the Acevedos came to the door, but he knew nothing about damage to their car.

In finding that the minor had committed vandalism, the court noted that Mrs. Acevedo, who had testified through an interpreter, “had some hard times with the language and with some of the questions but I don’t think that it had to do with concocting . . . a story.” The court further stated that Mrs. Acevedo’s “testimony was very clear in court” and that she was “very credible.” The court also noted that the minor’s testimony was uncorroborated.

At the dispositional hearing, the minor was placed home on probation, with a maximum period of confinement of three years.

DISCUSSION

1. Sufficiency of the Evidence

Pointing to some confusion in Mrs. Acevedo’s testimony regarding the side of the car that was scratched before the incident and some inconsistency in testimony between Mrs. and Mr. Acevedo about when Mr. Acevedo moved the car, the minor contends that the evidence is insufficient to support the finding against him. The minor continues that “[t]he evidence is strong that the damage was caused by [the minor’s] siblings when they rode their bicycles around the car” and the Acevedos’ testimony “when taken as a whole, is not solid and credible, but fraught with speculation and requires reversal.” We disagree.

“‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”. . . .’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.)

Mrs. Acevedo’s eyewitness observation of the minor’s act of vandalism was neither physically impossible nor apparently false. And in stating that the minor’s testimony was uncorroborated, the court justifiably noted that the minor had failed to call logical witnesses for his alibi defense, such as his girlfriend or his mother. (See People v. Szeto (1981) 29 Cal.3d 20, 34.) We are bound by the trial court’s credibility finding in favor of Mrs. Acevedo. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Accordingly, the minor’s contention of insufficient evidence must be rejected.

2. Exclusion of Evidence

During the minor’s testimony on direct examination, he stated that when the Acevedos came to the door, they accused his little brother, Jessie, of having damaged the car. The prosecutor moved to strike the testimony on hearsay grounds and the motion was granted. We agree with the minor’s contention that the motion should have been denied. The Acevedo’s accusation was not offered for its truth and therefore did not constitute hearsay. (Evid. Code, § 1200, subd. (a).) But given the trial court’s determination that Mrs. Acevedo was credible in testifying that she observed the minor scratch the car and the court’s comment that the minor’s testimony was uncorroborated, any error in striking the minor’s testimony regarding the accusation of Jessie was not prejudicial and therefore does not require reversal of the order of wardship. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Earp (1999) 20 Cal.4th 826, 878.)

3. Maximum Period of Confinement

In conjunction with ordering the minor home on probation, the court stated that the minor’s “[m]aximum term of confinement is 3 years.” The minute order of the February 20, 2007 disposition hearing states that the “[m]inor may not be held in physical confinement for a period to exceed 3 years.” Citing In re Ali A. (2006) 139 Cal.App.4th 569, the minor contends that the minute order must be modified to strike the reference to confinement time. We agree.

“When a juvenile ward is allowed to remain in his parents’ custody, there is no physical confinement and therefore no need to set a maximum term of confinement. Consequently, the maximum term of confinement . . . is of no legal effect.” (In re Ali A., supra, 139 Cal.App.4th at p. 571.) Accordingly, we shall order that it be stricken.

DISPOSITION

The order of wardship is affirmed. The juvenile court is ordered to strike the portion of the February 20, 2007 minute order stating that “[m]inor may not be held in physical confinement for a period to exceed 3 years.”

We concur: VOGEL, J., JACKSON, J.

Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Alberto M.

California Court of Appeals, Second District, First Division
Mar 26, 2008
No. B197363 (Cal. Ct. App. Mar. 26, 2008)
Case details for

In re Alberto M.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALBERTO M., Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Mar 26, 2008

Citations

No. B197363 (Cal. Ct. App. Mar. 26, 2008)