Opinion
A117507
4-21-2008
In re N.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N. M., Defendant and Appellant.
NOT TO BE PUBLISHED
N. M. appeals after the juvenile court sustained a petition alleging that he committed second degree robbery and attempted second degree robbery. Appellant challenges admission of his statement to the police and the sufficiency of the evidence supporting the courts findings. We affirm.
PROCEDURAL BACKGROUND
A February 2007 petition under Welfare and Institutions Code section 602 alleged that appellant, born in December 1991, committed second degree robbery (Pen. Code, § 211) and attempted second degree robbery (Pen. Code, §§ 211, 664). The juvenile court sustained the allegations after a contested jurisdictional hearing, continued appellant as a ward of the court, placed him at the New Foundations facility, and set the maximum period of confinement at eight years.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The two robbery counts were added to a December 2006 petition alleging attempted residential burglary. The facts of that allegation are not relevant to this appeal. Appellant was adjudged a ward of the court even before the December 2006 petition, due to previous sustained petitions.
FACTUAL BACKGROUND
On February 1, 2007, around 10:00 p.m., Andrew Steele and his boyfriend Garrett Oliver (the victims) walked toward a supermarket in Vallejo. They observed a group of five or six males in their late teens hanging around a blue Ford pickup in the parking lot, and detoured so as to enter the store without approaching the youths. The group was comprised of African-Americans and one White or Hispanic youth. Appellant is African-American.
Steele was the victim in the robbery count; Oliver was the victim in the attempted robbery count.
As Steele and Oliver approached the store, one or more youths yelled out requests for cigarettes. Steele shouted back that he had left his cigarettes at home. Several of the youths entered the store after the victims. One who had requested a cigarette approached. He recognized Oliver from school years before, shook Olivers hand, and they conversed for a short time. Oliver subsequently identified this youth as Dominic Holmes.
Holmes walked away. Steele and Oliver purchased drinks and walked outside. Holmes yelled across the parking lot to again request a cigarette. The victims approached Holmes, who was walking toward them from the pickup. Four or five other youths joined Holmes in requesting cigarettes, and Steele complied. The White or Hispanic youth took a cigarette and returned to the pickup; the remaining youths were all African-American.
Suddenly, Holmes picked up Steele by the back of his legs and threw him to the ground. Steele briefly lost consciousness. When he recovered, Holmes was punching him in the face and threatening, "`Give me your wallet or Im going to kill you. "Two of the other youths were going through his pockets. One took his cell phone.
Steele looked toward Oliver and saw him on the ground with two of the youths on him. Oliver testified that one of the youths hit him in the head, causing him to stumble, and another youth approached to try to pin him down.
Shawn Bartlett was in his car in the parking lot at the time of the robbery; he observed a group of six youths hanging out around a pickup. Five of them "very aggressive[ly]" attacked the victims. The sixth youth, who was White or Hispanic, ran up and joined the attack just before it ended.
The victims were able to get to their feet and they started to back up. Holmes told Steele that he had a gun and moved his hand toward his waistband. The victims fled into the supermarket, whereupon all of the assailants fled to the pickup, and the truck sped off.
During a 911 telephone call, Steele reported that four to five African-American male adults aged 18 to 20 years old, and possibly one White male adult, had been involved and had left in a blue Ford pickup.
At approximately 10:30 p.m., Vallejo Police Officer Badour observed five or six African-American males and one White male standing around a blue Ford Ranger pickup in another parking lot in Vallejo. Officer Badour and another officer detained the individuals, including appellant. Badour found Steeles cell phone on the ground under the pickups front end.
The victims and Bartlett were transported for an in-field identification about 20 minutes after the robbery. All three positively identified the group and pickup truck. All of the youths were arrested.
Officer Jerome Bautista took appellant into custody. After receiving his Miranda rights, while still at the scene, appellant told Bautista he had been home alone and had then walked to the parking lot where he was arrested. He told Bautista, "`I dont know why the police stopped me. I didnt do anything. I just came from my house." On the short ride to the police station, appellant kept repeating, "`I dont know why they stopped me. I didnt do anything. I dont even know whats going on."
At the police station, appellant initially stuck to that claim, but he eventually changed his story. He said that he had been at his cousin Terrys house with Terry and a friend named Quedell, and they had walked to the supermarket. There they met up with three other males. One named Jarrielle took a cell phone from one of the victims and another male threatened the victims by sticking his hands in his pockets as if he had a gun. After the victims left, appellant called a friend, who he refused to identify, to come pick him up. The friend arrived and picked up appellant, Terry, and Quedell, taking them to the location where they were detained. The other three males evidently followed them.
At the jurisdictional hearing, Steele, Oliver, and Bartlett were unable to identify appellant.
DISCUSSION
I. Voluntariness of Appellants Statement to Police
Appellant first contends that the juvenile court erred in denying his motion to suppress his statement admitting he was in the supermarket parking lot during the robbery. Appellant claims the statement was obtained through coercion.
A suspects statement to the police is considered voluntary "`if the accuseds decision to speak is entirely "self-motivated" [citation], i.e., if he freely and voluntarily chooses to speak without "any form of compulsion or promise of reward...." [Citation.] [Citation.]" (People v. Boyde (1988) 46 Cal.3d 212, 238.) A confession is involuntary where "a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess." (Ibid.) Coercive police activity (such as implied promises and threats) is a "necessary predicate" to a finding of involuntariness. (People v. Guerra (2006) 37 Cal.4th 1067, 1093; see Colorado v. Connelly (1986) 479 U.S. 157, 167.) The question of voluntariness is viewed "in light of the record in its entirety, including `all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. [Citations.]" (People v. Benson (1990) 52 Cal.3d 754, 779.) On appeal, "we accept the [juvenile] courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." (People v. Cunningham (2001) 25 Cal.4th 926, 992.) The prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (People v. Guerra, supra, 37 Cal.4th at p. 1093.)
Appellant argues that his confession was the product of improper promises and threats. "`It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.... Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if ... the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible .... " "[Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 115.) Officers also "`must avoid threats of punishment for the suspects failure to admit or confess particular facts .... [Citation.]" (Ibid.)
Officer Bautistas testimony, which the trial court clearly credited, supports the courts finding that appellants statement was voluntary. Bautista advised appellant of his Miranda rights from a preprinted card while still at the scene of detention. Appellant said he understood his rights. He did not ask for an attorney or decline to speak with Bautista. Bautista told appellant that he wanted to hear appellants side of the story and would be taking a statement from appellant; he also told appellant "that he can give me a statement if he wants to and he doesnt have to if he doesnt want to. I told him several times that. And, basically, I just wanted his side of the story."
At the station, Bautista interviewed appellant in an interrogation room without anyone else present. Bautista advised him several times that he did not believe appellants claim that he was not at the supermarket, "and now is his chance to tell me his side of the story, what really happened, the truth ...." Appellant asked "`Well, if I tell you this and that, will you for sure not put me in jail?" Bautista answered that he could not make any promises and "Its not for me to decide. Im not the investigating officer." "At least three times," Bautista told appellant that he could make no promise as to whether appellant would go to jail. Bautista told appellant something to the effect that "`It would be better for you if you told me your side of the story."
As Bautista was getting ready to end the interview, he told appellant, "`You know what; thats fine. You know, you could go ahead and go to jail for something you probably didnt do, and now is your chance to give me a statement. Tell me the truth. What happened?" Appellant then changed his story to state that he, his cousin Terry, and Quedell had walked to the supermarket and had simply been present when someone named Jarrielle took a cell phone from one of the victims. A friend then picked them up and drove them to the parking lot where they were detained. The interview at the station lasted 20 to 25 minutes.
During cross-examination, appellants counsel emphasized an exchange in which Bautista said to appellant, "`you could go ahead and go to jail for something that you probably didnt do." Counsel asked, "So, in other words, you were telling him that if he insisted on telling you the story he was offering, he was going to go to jail for it, right?" Bautista answered, "I guess it could be interpreted that way." This exchange is not reasonably understood as a concession that Bautista threatened to take adverse action if appellant stuck to his original story. Rather, viewing Bautistas testimony as a whole, it is clear the thrust of his comments was that appellants story was not credible and that appellant was likely to be held culpable for the robbery unless he could present a credible story showing his innocence. It is also clear that Bautista did not tell appellant, either expressly or impliedly, that if he told the truth he would receive a lesser sentence or any other particular form of leniency.
Appellant also emphasizes that the interview was not recorded. Bautista acknowledged he had been trained to videotape interviews regarding serious crimes and that he had erred in failing to videotape the interview. Although a videotape of the interview would have provided a much stronger record of what took place, appellant cites to no authority supporting his suggestion that the prosecution must provide a recording to establish a statements voluntariness. We defer to the juvenile courts implied finding that Bautista was credible. (People v. Cunningham, supra, 25 Cal.4th at p. 992.)
Although appellants juvenile status is relevant to our inquiry (In re Aven S. (1991) 1 Cal.App.4th 69, 75), there can be no finding of involuntariness absent coercive police activity. (People v. Guerra, supra, 37 Cal.4th at p. 1093.) The juvenile court did not err in denying the motion to suppress.
Even in the absence of coercion, a defendants statement can be suppressed if the waiver of Miranda rights was not knowing and intelligent. (People v. Lewis (2001) 26 Cal.4th 334, 384.) However, appellant has not presented a reasoned argument that his age, intelligence, or any other personal characteristics precluded him from validly waiving his Miranda rights.
II. Sufficiency of the Evidence
Appellant contends that, even if his statement to Officer Bautista was voluntary, the juvenile courts jurisdictional findings are not supported by substantial evidence.
In an appeal challenging the sufficiency of the evidence to support juvenile court findings sustaining the allegations of a section 602 petition, we "`must review the whole record in the light most favorable to the [findings] below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt. [Citations.] [¶] ... If the circumstances reasonably justify the [juvenile] courts findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.) "[T]he evidence of a single witness is sufficient for proof of any fact." (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; see also Evid. Code, § 411.)
Appellant points to the fact that Steele, Oliver, and Bartlett failed to identify him at the jurisdictional hearing. However, the failure of a witness to repeat an out-of-court identification in court does not destroy its probative value. (People v. Cuevas (1995) 12 Cal.4th 252, 265.) Such out-of-court identifications are to be considered in determining the sufficiency of the evidence. (Id. at p. 274.) "[A] testifying witnesss out-of-court identification ... can, by itself, be sufficient evidence of the appellants guilt even if the witness does not confirm it in court." (People v. Boyer (2006) 38 Cal.4th 412, 480.)
Appellant also points out that during the in-field identifications the victims and Bartlett did not specifically identify him by face and by his role in the robbery. This is not determinative. Steele and Bartlett testified that all five of the African-American youths standing around the pickup in the supermarket parking lot participated in the robbery. The evidence showed that after the robbery all of the youths ran to the truck, which took off. Within minutes, officers detained six individuals (five African-Americans and one non-African-American), including appellant, standing near the Ford pickup associated with the robbery. The victims and Bartlett positively identified the group and pickup truck. Steele and Oliver said that they were 100 percent sure it was the same group. Steele testified that he "recognized all of them at that time" and that the group was wearing the same clothing as during the robbery. He was able to specifically identify Holmes, the Hispanic youth, and one of the youths who searched his pockets. Oliver testified that he "was very sure that they were the same individuals involved." Oliver specifically identified appellants cousin Terry as one of the assailants, and he repeated that identification in court. Bartlett testified, "[F]rom what I saw, they looked like the ones that I saw in the [supermarket] parking [lot] that attacked the [victims]." Viewing a photograph of appellant taken the night of the robbery, Bartlett testified that he recalled seeing appellant in the supermarket parking lot and participating in the attack.
Although the statement obtained by Officer Bautista was not a confession to participation in the robbery, it nevertheless was an admission of appellants presence at the scene of the robbery, and the remainder of the statement was utterly inconsistent with the testimony of the victims and Bartlett. Appellant said that he, Terry, and Quedell did not participate in the robbery, but the victims and Bartlett did not testify there were any African-American youths who did not participate, much less three. Oliver specifically identified Terry as one of the assailants. Appellant said that he, Terry, and Quedell were picked up by a friend, but Steele and Bartlett testified that all the youths left in the pickup. The apparent falsity of these statements constituted strong evidence against him. "`False statements deliberately made by appellants to arresting officers concerning matters within [defendants] own knowledge, and relating to the issue of guilt or innocence, "cogently evidence consciousness of guilt and suggest that there is no honest explanation for incriminating circumstances." "[Citations.]" (People v. Kimble (1988) 44 Cal.3d 480, 496.)
On cross-examination, Bartlett admitted it was possible there was an unseen additional person in the pickup truck. However, there is no evidence suggesting that three youths could have remained hidden in the pickup truck during the robbery.
Substantial evidence supports the juvenile courts jurisdictional findings.
Because there was sufficient evidence to support findings that appellant participated as a principal in the robbery and attempted robbery, we need not separately consider whether there was sufficient evidence to prove aider and abettor liability. Nevertheless, even if appellant was not a principal in the attacks on both victims, his participation in the attack on one is sufficient to establish aider and abettor liability for the attack on the other. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
DISPOSITION
The juvenile court orders are affirmed.
We Concur:
Simons, Acting P. J.
Needham, J.