Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 64265
SCOTLAND, P.J.
The juvenile court found that Anthony R. (the minor) committed second degree robbery, a felony, and the minor admitted committing second degree burglary, a misdemeanor, on a separate occasion. He was adjudged a ward of the court (Welf. & Inst. Code, § 602) and was ordered to serve 75 days in juvenile hall, with credit for 15 days, followed by 60 days on an electronic monitor.
On appeal, the minor contends there was insufficient evidence that he committed the robbery, the court erred by failing to obtain the minor’s waiver of his confrontation rights before accepting his submission of the jurisdictional issue on the police report, and the court erred in calculating predisposition credits. We shall affirm the judgment as modified to award additional credits.
FACTS
The facts of the robbery are gleaned from Stockton Police Department report No. 06-64780, which the parties agreed would be the evidence upon which the juvenile court would decide the robbery charge. The facts of the burglary are not at issue on appeal and, thus, will not be set forth in this opinion.
On December 2, 2006, Sheldon Martin was working as a delivery driver for a pizza restaurant. Early that evening, a telephone caller placed an order for a pizza to be delivered to 1532 East Sixth Street. Martin arrived at that address and knocked on the door but no one answered. A neighbor told Martin that the resident had recently died. Martin then telephoned the caller using the number given when placing the order. A male voice answered and told Martin, “[N]o, I’m at 1632 E Sixth.”
Martin drove to 1632 East Sixth Street; but before he reached the front door of that residence, a young Hispanic male approached Martin and demanded, “[G]ive me all your money or I’ll shoot.” Martin did not see a gun because the hands of the robber were hidden in his waistband. Martin turned over his money--between $40 and $50 cash--to the robber, who fled the scene. Martin then contacted the residents of 1632 East Sixth Street, who informed him that they had not ordered a pizza.
The robbery occurred at approximately 7:30 p.m., but Martin did not report it until shortly before 10:00 p.m., explaining that he had been “too busy” to report it earlier. Martin described the robber as a Hispanic male, 16 to 20 years old, wearing a blue hooded sweatshirt, blue jeans, and a red bandana around his face. Officers Larry Lane and Jon Scofield responded to the report. Martin repeated to them his description of the robber, except stating the robber was between 18 and 19 years old and was about 5’5” tall and 120 pounds. Lane examined Martin’s cell phone and noted the telephone number that Martin called at 6:52 p.m. Martin said it was the number left by the man who ordered the pizza and was the number that Martin had telephoned to verify the address where the pizza was to be delivered. When Lane called the phone number, a male voice answered. Lane then identified himself as a police officer and asked who the person was and where he lived. The minor identified himself and gave his address, which was two blocks away from the robbery scene.
At 10:41 p.m., Officers Lane and Scofield went to the address and found the minor sitting in a chair in front of the residence. Standing on the front porch were the minor’s brother, G.M., and great aunt. Lane told them the minor’s cell phone had been used in a robbery that evening. Both relatives said the minor had not been home around 7:00 p.m. G.M. added that the minor had returned home about five minutes before the officer called at about 10:28 p.m. Neither relative could remember what the minor was wearing when he arrived home; however, G.M. recalled that the minor quickly changed his clothes.
While Officer Lane spoke with the minor’s relatives, Officer Scofield advised the minor of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) The minor confirmed he understood his rights and was willing to talk to the officers. Thereafter, Lane told the minor that his cell phone had been used to call for a pizza delivery which ended up being a set-up for a robbery. The minor said he would be willing to let the officers look at his cell phone, but he did not want them entering his room to do so. Lane observed that, during their conversation, the minor looked behind Lane several times as though he was thinking about running away. The minor, who in most respects matched the physical description given by the victim, denied being the robber and said he had been “out in the vista” most of the day, including the time of the robbery. He also claimed he had loaned his cell phone to a friend for part of the day. He refused to name any persons who could verify his alibi.
Officer Lane asked G.M. whether the officers could look in the room that he shared with the minor. G.M. commented that he did not care, but it was up to the aunt, who in turn told Lane to “go ahead.” Lane entered the room and immediately noticed a cell phone sitting on top of a dresser. G.M. said the phone belonged to the minor. After showing Lane which dresser drawers were G.M.’s and which were used by the minor, G.M. pulled open one of the minor’s drawers. Visible in plain sight was a red bandana. Lane searched the room but did not find a blue hooded sweatshirt.
Officer Scofield examined the received calls list in the minor’s cell phone and found one call from Martin’s cell phone at 6:52 p.m. Examining the dialed calls list in the minor’s phone, Scofield found one call, at 6:05 p.m., to the restaurant where Martin worked. The minor was taken into custody.
DISCUSSION
I
The minor contends the evidence was insufficient to support the juvenile court’s finding that the minor committed robbery. He concedes “the evidence demonstrates that a robbery took place,” but argues that the circumstantial evidence of his identity as the robber, “while suggestive, does not rise to the standard of ‘beyond a reasonable doubt.’” We disagree.
We review the whole record in the light most favorable to the juvenile court’s finding to determine if it discloses substantial evidence such that a reasonable trier of fact could find beyond a reasonable doubt that the minor was the robber. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) We presume the existence of every fact the judge could reasonably deduce from the evidence, and indulge in all reasonable inferences that support the finding. (Ibid.; see In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
The robbery was committed by using the all-too-common ruse of placing a telephone order for pizza to be delivered to a fictitious address and then using a threat of force to steal money from the person who delivers the pizza.
When, approximately two and a half hours after the robbery, Officer Lane called the telephone number the suspect had given for the pizza order, the minor answered and admitted he lived two blocks from the scene of the robbery. Lane went the minor’s residence and found the minor and two of his relatives there. Both relatives said the minor was not home around the time of the robbery. According to his brother, the minor arrived home about five minutes before Lane telephoned him.
The robbery victim described the suspect as a Hispanic male, between 16 and 20 years old, about 5’5” tall and 120 pounds, wearing a blue hooded sweatshirt, blue jeans, and a red bandana across his face. The minor, a 15-year-old Hispanic male, was 5’5” tall and weighed 160 pounds. Although the minor was wearing a white T-shirt and black and white shorts when arrested, his brother revealed that the minor had quickly changed his clothes when he came home.
Evidence found at the bedroom used by the minor linked him to the robbery. His cell phone, used to place the pizza order and to receive the victim’s inquiry about the delivery address, was found atop the victim’s dresser. And a red bandana, like the one used by the robber to cover his face, was in the dresser drawer.
The minor claimed he had been “out in the vista” that day and had loaned his cell phone to a friend. However, he refused to name anyone who could verify his story. Officer Lane noted that the minor acted nervous and looked behind the officer several times “as though he was contemplating running away.”
In finding the robbery allegation true, the juvenile court commented: “When [the minor] is contacted and informs the police officers that he loaned the cell phone to somebody else who then apparently or allegedly used it to commit this crime, and then is unable to recall the name of that person, it is absolutely incredible.” The court noted that the robbery occurred “within a short distance of” the minor’s residence, that he “comes home” and “jumps into bed,” and that “the police officer searches” and “finds the bandana.” Acknowledging that “the case is circumstantial,” the court noted that “the circumstances do add up.”
Ample evidence, indeed the almost overwhelming evidence we have summarized above, supports the juvenile court’s finding. Arguing to the contrary, the minor points out that the victim described the robber as a 5’5” tall Hispanic male between 16 and 20 years old and weighing 160 pounds; whereas the minor was a 5’5” tall Hispanic male who was 15 years old and weighed 120 pounds. As a matter of common knowledge, estimates of age and weight are subjective. Considering that the victim had been threatened with being shot, the physical description he gave of the robber is remarkably close to the minor’s physical description. This coupled with the facts that the minor’s cell phone was used to commit the robbery and that, after the robbery, the minor was in possession of the cell phone and a red bandana like the one worn by the robber is strong evidence that the minor was the robber.
The minor disagrees, noting that the robber wore a blue hooded sweatshirt and blue jeans, whereas the minor wore a white T-shirt and black and white shorts when he was arrested. But his brother revealed that upon returning home, the minor immediately changed clothing -- circumstantial evidence of his consciousness of guilt.
Another fact the minor stresses is that the minor did not have any money or a blue hooded sweatshirt when he was arrested. However, this is hardly helpful to the minor because the officer’s call tipped him off that he was a suspect in the robbery and the minor had ample time to hide or dispose of that damning evidence.
We reiterate, evidence of the minor’s guilt was very strong. Without question, it is substantial evidence supporting the juvenile court’s finding beyond a reasonable doubt the minor was the robber.
II
The minor claims that before accepting submission of the jurisdictional issue based on the police report, the juvenile court erred by failing to advise him, and obtain his waiver, of his Sixth Amendment right to confront evidence against him. We find no prejudicial error.
When the matter was called for a contested jurisdictional hearing, the juvenile court noted there had been discussion at the bench and invited counsel to place the discussion on the record. The prosecutor stated: “Counsel and I had discussed this matter before it was called and agreed that we would be willing to submit the jurisdictional issues on the crime report, which is Stockton PD Report 06-64780 for the Court to read. And then we could argue it, and the Court can make its jurisdictional finding based upon that.”
The minor’s counsel added: “And, your Honor, just for the record, I did discuss this with [the minor] and he has agreed to waive his right to the trial with the witnesses and to submit on the report.” The minor indicated that his counsel’s statement was correct.
The minor’s counsel then argued the robbery allegation was not proved beyond a reasonable doubt because no one identified the minor as the robber; there was a three-hour delay in reporting the robbery; there was a 40-pound discrepancy in weight; no money and no blue sweatshirt were found; the minor was with friends “on the vista” (the Sierra Vista Apartments) at the time of the robbery; and he answered the police officer’s call, revealed his location, and waited for the officer to come to him. Defense counsel did not “believe in any way that this raises to the level of beyond a reasonable doubt.”
The minor never objected to the agreed submission procedure and never raised a confrontation clause issue in the juvenile court.
Nonetheless, the minor argues the totality of circumstances fails to show a voluntary and intelligent waiver of his right to confront and cross-examine witnesses against him.
The People respond that the minor has forfeited his claim by failing to make a timely and specific objection on this ground in the juvenile court. (Evid. Code, § 353; e.g., People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Alvarez (1996) 14 Cal.4th 155, 186.) We agree. In any event, a Sixth Amendment objection would have lacked merit.
“‘[A]n appellate court, in determining whether a submission is a slow plea, must assess the circumstances of the entire proceeding. It is not enough for a reviewing court to simply count the number of witnesses who testified at the hearing following the submission. A submission that prospectively appeared to be a slow plea may turn out to be part of a full-blown trial if counsel contested the sufficiency of evidence . . . . Conversely, a submission that did not appear to be a slow plea because the defendant reserved the right to . . . argue the sufficiency of the evidence [citation] may turn out to be a slow plea if the defense presented no . . . argument contesting guilt. [¶] If it appears on the whole that the defendant advanced a substantial defense, the submission cannot be considered to be tantamount to a plea of guilty. . . . A submission under these circumstances is not a slow plea, and the trial court is not constitutionally compelled . . . to administer the guilty-plea safeguards to assure that the tactical decision is voluntary and intelligent.” (People v. Sanchez (1995) 12 Cal.4th 1, 28-29.)
Here, the minor’s counsel presented a substantial argument contending the evidence in the police report was not sufficient to support a finding that the minor was the robber. Therefore, the minor effectively had a trial; the guilty-plea safeguards were not constitutionally compelled, and a Sixth Amendment objection would have lacked merit. (People v. Sanchez, supra, 12 Cal.4th at pp. 28-29.)
The minor argues the court failed to give him an advisement, as required by California Rules of Court, rules 5.534(k)(1)(B) and 5.778(b), of his right to confront and cross-examine witnesses. His only claim of prejudice is that the lack of advisement led to his agreement to submit the jurisdiction issue on the police report. But he has forfeited the claim by failing to seek exclusion of the report on that ground. (Evid. Code, § 353; People v. Burgener, supra, 29 Cal.4th at p. 869.)
Besides, the minor had been advised of his confrontation rights on December 1, 2006, and the juvenile court found that the minor understood those rights. The minor has not shown he was unaware of those same rights when the matter was submitted based on the police report and argument by counsel. Prior to submitting the issue, the minor’s counsel assured the court that he “did discuss this with [the minor] and [the minor] has agreed to waive his right to the trial with the witnesses and to submit on the report.” The minor personally assured the court his counsel’s statement was correct. On appeal, the minor has not shown any lack of awareness that his waiver of “the trial with the witnesses” included a waiver of his right to confront and cross-examine those same witnesses at that same trial. His submission on the police report was voluntary and intelligent under the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 360.)
III
The minor contends the juvenile court erred in granting him only 15 days of credit against his 75-day commitment. We agree.
The minor was arrested and booked into juvenile hall on November 12, 2006, for breaking into an occupied trailer at a construction site. On November 15, 2006, he was ordered detained in the “Juvenile Justice Center.” On November 17, 2006, he was released on the electronic monitoring program (EMP) to live with his grandmother. On December 1, 2006, he admitted the second degree burglary allegation, and his supervision was downgraded from EMP to house arrest, again with his grandmother.
On December 2, 2006, the day after the downgrade, the minor committed the robbery and was arrested and booked into juvenile hall. On January 17, 2007, he was “released” and placed on EMP.
On February 28, 2007, the court found the robbery petition true and ordered the minor detained in the Juvenile Justice Center. The probation report shows that he remained in the juvenile hall from February 28, 2007, until March 14, 2007.
The probation report recommended that the minor be committed to juvenile hall for 75 days, with 15 days of credit for confinement from February 28, 2007, to March 14, 2007, and that the court find “the maximum period of confinement time to be 5 years and the minor shall be given credit for 22 days current and aggregated time served.”
On March 14, 2007, the court committed the minor to juvenile hall for 75 days with 15 days of credit for time served, and noted that his “maximum custody time is 5 years. He has 22 days credit for time served.”
The minor contends he is entitled to custody credit for the period from his initial arrest for the second degree burglary until his release on EMP. As the People point out, the arrest was on November 12, 2006, not November 15 as stated by the minor. Thus, the minor was booked into juvenile hall on November 12, committed to the “Juvenile Justice Center” on November 15, and released on EMP on November 17. Because confinement for the partial day on November 17 counts as a day, the minor is entitled to six days of custody credit for the period of November 12 through November 17, 2006. (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
The minor claims he is entitled to 47 days of credit for the period from December 2, 2006, to January 17, 2007. He notes that “[t]here is no indication in the record that [he] was released from Juvenile Hall” at any time during that period. The People counter the record fails to show where the minor stayed during that period, and this court “should not assume [he] was detained in Juvenile Hall in the absence of proof.” The minor has the persuasive argument.
The record shows that both releases from confinement--from the juvenile justice center to EMP on November 17, 2006, and from an unspecified location to EMP on January 17, 2007--occurred as a result of on-the-record orders by the juvenile court. The People speculate that other releases from confinement may have occurred in the absence of an authorizing court order. We will not indulge such speculation. The minor has shown his entitlement to additional predisposition credit.
Accordingly, the minor is entitled to six days of credit for November 12 through 17, 2006; 47 days of credit from December 2, 2006, through January 17, 2007; and 15 more days of credit from February 28, 2007, through March 14, 2007. We shall modify the judgment to award the minor 68 days of custody credit toward his current commitment. We shall also make a corresponding addition to the minor’s credit toward his maximum period of confinement.
DISPOSITION
The judgment is modified to award the minor 68 days of credit toward his 75-day juvenile hall commitment and 75 days of credit toward his five year maximum period of confinement. As so modified, the judgment is affirmed. The juvenile court is directed to send a certified copy of its amended commitment to the officer having custody of the minor.
We concur: SIMS, J., ROBIE, J.