Opinion
F075956
07-11-2018
In re ALEXANDER M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER M., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD070634)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Ellison, J.†
-ooOoo-
Alexander M. appeals from a true finding on a robbery allegation adjudicated against him in juvenile court. He argues the juvenile court prejudicially erred in admitting a witness's prior statement at his jurisdiction hearing. We agree and reverse. Alexander further argues the evidence underlying the true finding on the robbery allegation is insufficient, barring retrial. We disagree and remand the matter for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
On May 26, 2017, a juvenile wardship petition was filed in the Tulare County Superior Court in accordance with Welfare and Institutions Code section 602 alleging that Alexander, 16 years old at the time, had committed felony second degree robbery (Pen. Code, § 211; count 1) and misdemeanor battery (Pen. Code, § 242; count 2).
On June 20, 2017, the juvenile court held a contested jurisdiction hearing. The court found count 1 to be true and sustained the petition as to that count. The court dismissed count 2, finding it had not been proven beyond a reasonable doubt.
On June 30, 2017, the court held a disposition hearing. The court adjudged Alexander a ward of the court and placed him in the custody of his mother, under the supervision of a probation officer.
Alexander states in his opening brief that his juvenile adjudication for robbery would count as a "strike" conviction in any case against him as an adult.
FACTS
The jurisdiction hearing in this matter was conducted as to two minors at the same time: Alexander and Juan R. The prosecution presented two witnesses at the jurisdiction hearing: (1) Carla F., a 14-year-old student at Dinuba High School, testified as the only percipient witness, and, (2) Dinuba Police Officer Jessica Martin, an officer assigned to the high school, testified about her investigation into the matter. Alexander did not present any evidence, nor did Juan.
Testimony of Carla F.
On May 23, 2017, Carla and her friend, Daniel S., left the Dinuba High School campus over lunch recess to walk to a nearby store. At the store, they met up with another classmate, Freddie C. Carla, Daniel, and Freddie were all fourteen years old. Upon leaving the store, as the three students walked to a shady spot, they were approached by two older teens, who said something to Daniel. The older teens, later identified as Alexander and Juan, looked 16 or 17 years old. Alexander was taller than Juan. Carla kept walking and did not remember what the older boys said to Daniel. Carla did not know or recognize the older boys.
Juan talked to Daniel and "pulled him." Daniel did not respond and just stood there. Juan then took Daniel's phone and headphones; she remembered Juan was holding Daniel's phone. Alexander then forced Daniel to take off his belt and took it. Carla had seen "many, many people wear that belt" and thought it was "pricey."
Carla had initially testified that Juan took the phone, earphones, and belt from Daniel. On cross-examination, defense counsel asked her whether Juan had taken all three items from Daniel. Carla then clarified: "He only took the phone and the ear phones. [Alexander] was the one that took off his belt. Like forced him to take it off." Counsel then asked: "So it is your testimony that it was [Alexander] who took off the belt?" Carla answered, "Yes." When pressed by defense counsel about her conflicting testimony, Carla explained: "I just remembered they were both doing something. [¶] They were - I'm not sure who took what, but they were both taking his items."
Carla did not recall precisely where Alexander was in relation to Daniel as the incident unfolded. She said that Daniel, Freddie, and Juan "were like in their own group" but did not remember where Alexander was. Defense counsel asked: "[D]uring the entire incident, what was the closest distance that [Alexander] got to [Daniel]?" Carla responded: "They were both taking the things from [Daniel]. So I don't know how close he was specifically, but they were both taking things from him."
Carla wanted to call for help but she held back because she was afraid the older boys might have a gun. She had heard one of them use the word, "blast," which triggered the thought of a gun in her mind. She believed Juan had used the word, "blast," because "he was the one doing the talking mostly."
Testimony of Officer Jessica Martin
Dinuba Police Officer Jessica Martin, an officer assigned to the high school campus, investigated the robbery over the following days. She questioned Daniel, Carla, Alexander, and Juan.
Martin questioned Carla on May 24, 2017, the day after the robbery. Carla's demeanor was "terrified," "beyond terrified." Carla told Martin that Juan went up to Daniel and said, "Give me your shit." Carla said that Juan took Daniel's phone, headphones, and belt. Meanwhile, Alexander asked Freddie whether he wanted to fight. Either Juan or Alexander warned Daniel, Freddie, and Carla that were they to snitch, "they would get blasted."
Martin showed Carla two photo lineups. Carla identified Alexander and Juan as the older boys in the incident. Martin knew Alexander and Juan from numerous casual contacts she had with them, as a result of her presence on campus.
Martin interrogated Alexander the day after the robbery took place. Employing an interrogation tactic or ruse, she asked him why he was captured on video stealing items from Daniel. Alexander responded that "he didn't know." Martin asked whether Alexander was pressured to take part in the robbery; Alexander responded, "[N]o." Martin asked whether Alexander wanted to rob any students; Alexander said, "[No.]" Martin asked him whether he knew where the stolen property was; Alexander said, "[N]o." Martin asked him what consequences should be visited upon him for participating in a robbery; in response, Alexander asked why his views would matter.
Martin next went to Juan's school. Martin asked to inspect Juan's belongings that were stored at the school. Martin found Daniel's red and black headphones among Juan's belongings. Martin then interrogated Juan. Employing the same interrogation tactic she used on Alexander, Martin asked Juan why he was seen on video stealing items from Daniel. Juan explained that "one of the guys" owed money to Juan's friend, so Juan took it upon himself to try to retrieve the money for his friend. Juan denied knowing where the stolen property was located. Juan asked whether he was facing a felony or misdemeanor charge; Martin advised him he was facing a felony charge. Juan inquired why it was a felony when he did not beat anyone up or use a gun.
DISCUSSION
I. Admission of Carla's prior statement to Officer Martin to the effect that Alexander had asked Freddie whether he wanted to fight
Alexander argues the court prejudicially erred in admitting Carla's statement to Officer Martin that Alexander had asked Freddie whether he wanted to fight. We agree the court erred in admitting this statement and the error was prejudicial.
A. Background
Carla, on direct examination by the prosecutor, described the incident underlying the instant charges against Alexander and Juan. She testified that, at lunch recess, she and Daniel walked from school to a nearby store, where they met Freddie. Carla stated that when the three friends left the store, they were approached by Juan and Alexander. Carla explained what happened next: "Well, I kept walking. They didn't say anything to me, but they said something to Daniel." When asked what was said, even the gist of what was said, Carla stated: "They said something, but I [don't] recall what they said." She clarified that actually it was Juan who said something to Daniel. Carla also explained that she "was focusing on Daniel the most," and that between Juan and Alexander, she "remembered [Juan] the most." Thereafter, on cross-examination, Alexander's counsel asked Carla: "Did you hear [Alexander] say anything at all during this incident?" Carla responded: "I don't remember." After cross-examination, Carla was excused from giving further testimony in the proceeding.
The prosecutor then called Officer Martin to the stand and questioned her about the statement she took from Carla. The following exchange took place:
"[THE PROSECUTOR]: Was [Carla] able to provide you with any statements specifically that were made by either of the two individuals during this incident? [¶] ... [¶]
"[OFFICER MARTIN]: She said that the first suspect came up and said give me your shit.
"[THE PROSECUTOR]: And was there anything else that she remembered at that time that she spoke to you on [May 24] that she wasn't able to recall on the stand today?
"[OFFICER MARTIN]: She recalled that the second suspect was pushing Freddie and asking him if he wanted to fight.
"[ALEXANDER'S COUNSEL]: Objection. Hearsay. There's no foundation [of] a prior inconsistent statement. That was not testified to by Carla.
"[THE PROSECUTOR]: I'll concede as to the push, but not as to the statement.
"THE COURT: Okay. The objection is sustained as to the push, but not as to the statement."
Subsequently, during his closing argument, the prosecutor argued that Alexander was "more than a mere bystander" because he had challenged Freddie to a fight. Alexander's counsel objected on grounds that the prosecutor's argument was based on facts not in evidence. The following exchange then took place:
"[THE PROSECUTOR]: "The testimony from the officer is that [Alexander] had gone up to push [Freddie] and challenged him to fight. I agree push had not been properly impeached because [Carla] hadn't [been] asked that, but the statement challenged to a fight, I believe that was a proper statement. I believe that's what the Court's ruling was.
"THE COURT: Did [Carla] testify there was a challenge to fight Freddie by [Alexander]?
"[THE PROSECUTOR]: [Carla] testified that she didn't remember what was said.
"[THE COURT]: All right. Yes, that would come in, then, as a prior inconsistent statement."
B. Analysis
"A witness's prior statement that is inconsistent with his or her testimony is admissible so long as the witness is given the opportunity to explain or deny the statement," or the witness has not been excused from giving further testimony in the action. (People v. Ledesma (2006) 39 Cal.4th 641, 710 (Ledesma); People v. Avila (2006) 38 Cal.4th 491, 579; see Evid. Code, §§ 770, 1235.) "Ordinarily, a witness's inability to remember an event is not inconsistent with that witness's prior statement describing the event." (People v. Rodriguez (2014) 58 Cal.4th 587, 633.) When, however, "a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 (italics added); see Ledesma, supra, at pp. 711-712.)
Here, Carla testified, on direct examination, that Juan came up to Daniel and said something to him. During cross-examination by Alexander's counsel, Carla testified she did not remember whether Alexander had said anything during the incident. The prosecution then sought to introduce, through Officer Martin, Carla's prior statement to Martin to the effect that she had heard Alexander ask Freddie whether he wanted to fight. The juvenile court admitted Carla's statement as a prior inconsistent statement. However, there is no indication in the record that Carla was being deliberately evasive and untruthful when she said she did not remember whether Alexander said anything during the incident. Indeed, the record suggests, to the contrary, that Carla, the only percipient witness called by the prosecution, honestly did not remember whether Alexander had said anything during the incident. Carla was traumatized by the incident and testified she had "tried to forget about it because it did kind of scare [her]." She said that during the robbery she "was focusing on Daniel the most," and that between Juan and Alexander, she "remembered [Juan] the most." She also testified she kept walking and tried to distance herself when Juan and Alexander approached Daniel and Freddie. In addition, she said she remembered things better when she talked to Officer Martin than when she testified at the hearing. And while Carla acknowledged she was nervous and scared to be testifying, being nervous and scared does not, without more, equate to being deliberately evasive and untruthful. Furthermore, Carla did not shy away from recounting other details of the robbery despite being nervous and scared. In sum, there is no hint in the record that Carla's testimony that she did not remember whether Alexander had said anything during the incident was a deliberate lie.
We therefore conclude the juvenile court erred in admitting, as a prior inconsistent statement, Carla's statement to Officer Martin that she had heard Alexander ask Freddie whether he wanted to fight.
C. Prejudice
In his closing argument, the prosecutor argued that Alexander was guilty of robbery of Daniel as an aider and abettor. In doing so, the prosecutor relied on and emphasized Carla's statement to Officer Martin that she heard Alexander challenge Freddie to fight. Specifically, the prosecutor argued: "I think it is very clear what happened. Both individuals approached Freddie, Daniel, and Carla. [Juan] asked for Daniel's shit, his stuff, and proceeded to take his cell phone, his belt, and his ear phones from him. [¶] Prior to this happening, [Alexander] demonstrated that he was more than a mere bystander by challenging Freddie to fight."
The prosecutor emphasized that the fact that Alexander challenged Freddie to fight demonstrated that he "was more than merely present during the robbery." The prosecutor added that Alexander's challenge to Freddie to fight showed "[Alexander] was an active participant, whether or not [one] believed Carla's testimony [that] ... he also took the belt, or her prior statement that he was merely present while [Juan] took all the items of property." In his rebuttal argument, the prosecutor reiterated: "In this case mere presence is not enough. However, I think the evidence is clear [Alexander] was more than just present. He was willing to fight the individuals. He was willing to use force or violence which increases the fear of [Daniel]." The prosecutor continued: "The presence of [Alexander] as an additional body is there as an implied threat. Especially considering approaching together and one of them makes the demand for the property, the other one makes the threat of violence against the other person. So I think that his presence there was more than mere presence. His presence there actively aided and assisted [Juan] in the robbery, if by nothing else than distracting [Freddie] from coming to the aid of his friend." The prosecutor characterized Juan as the "primary participant in the robbery" as well as the "primary beneficiary [and, as such,] the principal of the robbery."
The juvenile court found true the robbery allegation against Alexander. The court explained its reasoning: "Okay. Based on the evidence that I heard, if you take into account all the evidence, it appears clear to the Court that they were both, [Alexander] and [Juan] were operating in concert. That [Alexander] obviously being the taller one and threatening physical harm to one of the parties, appeared to be the intimidating or muscle part of it, whereas [Juan], the shorter individual, was the principal of the robbery." The court's statement reveals that, in sustaining the robbery allegations against Alexander and Juan, it determined that Juan was the direct perpetrator of the robbery while Alexander acted as an aider and abettor by challenging Freddie to a fight. The court clearly was persuaded by the prosecutor's argument to this effect, which, in turn, was based on Officer Martin's testimony about Carla's prior statement. Martin testified that the day after the robbery, Carla told her that Juan took Daniel's phone, ear phones, and belt and Alexander challenged Freddie to a fight. In relying on Martin's testimony about Carla's prior statement, the court rejected Carla's in-court testimony that Alexander also took an item from Daniel.
Although not admitted into evidence, Daniel had also told Martin that Juan took his phone, earphones, and belt from him.
Given this record, had Carla's prior statement that she heard Alexander challenge Freddie to fight been excluded, there is a reasonable probability the outcome of the proceeding would have been more favorable to Alexander. (People v. Watson (1956) 46 Cal.2d 818; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918 [probability under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility"].) Accordingly, the erroneous admission of this testimony was prejudicial, requiring reversal.
Since we have found in Alexander's favor on state law grounds, we need not address his further contention that the erroneous admission of Carla's prior statement violated his right to confrontation under the Sixth Amendment to the United States Constitution.
II. Sufficiency of the evidence to support Alexander's robbery conviction
Alexander challenges the sufficiency of the evidence to support his robbery conviction. We conclude the evidence was sufficient.
In reviewing a challenge based on the sufficiency of the evidence to support a conviction, our consideration is limited to the question whether the conviction is supported by substantial evidence, i.e., evidence that is "'reasonable in nature, credible, and of solid value.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) More specifically, "[i]n reviewing the sufficiency of the evidence, we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Davis (1995) 10 Cal.4th 463, 509.) We must presume in support of the judgment the existence of every fact a trier of fact could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) Finally, "'[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.'" (People v. Panah (2005) 35 Cal.4th 395, 489; People v. Scott (1978) 21 Cal.3d 284, 296.)
The offense of robbery under Penal Code section 211 is the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211; People v. Gomez (2008) 43 Cal.4th 249, 254-255.) A "felonious taking" means a taking with "the intent to steal," People v. Bacon (2010) 50 Cal.4th 1082, 1117, i.e., a taking with the intent to permanently deprive an owner of his property. (People v. Torres (1995) 33 Cal.App.4th 37, 50 [specific intent to steal, i.e., to permanently deprive an owner of his property, is required for robbery]; People v. Ford (1964) 60 Cal.2d 772, 792, overruled on other grounds by People v. Satchell (1971) 6 Cal.3d 28.) Therefore, robbery entails a taking—motivated by an intent to steal—that is accomplished by means of force or fear. (People v. Anderson (2011) 51 Cal.4th 989, 994 ["'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal'"].) In turn, robbery has the following elements: the defendant (1) took possession of property not his own, (2) from another, (3) against that person's will, (4) using force or fear to effect the taking or to prevent resistance to it, and (5) with the specific intent to permanently deprive the owner of his property. (People v. Lewis (2008) 43 Cal.4th 415, 464, rejected on another ground by People v. Black (2014) 58 Cal.4th 912; People v. Marshall (1997) 15 Cal.4th 1, 34.)
A person may be guilty of a crime as a direct perpetrator or as an aider and abettor. (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy); Pen. Code, § 31.) An aider and abettor acts with "knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) The "aider and abettor doctrine" "obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (McCoy, supra, at p. 1120.) "'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.'" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
Although we concluded above that the evidence of Carla's statement to the effect that Alexander had challenged Freddie to a fight was inadmissible, in reviewing the sufficiency of the evidence we must consider all the evidence presented to the trier of fact. (Lockhart v. Nelson (1988) 488 U.S. 33, 39-42; People v. Story (2009) 45 Cal.4th 1282, 1296 ["[W]hen reviewing the sufficiency of the evidence for purposes of deciding whether retrial is permissible, the reviewing court must consider all of the evidence presented at trial, including evidence that should not have been admitted."].) This is so because the double jeopardy clause does not bar retrial after a reversal based on the erroneous admission of evidence, if the erroneously admitted evidence supports the conviction. (U.S. v. Chu Kong Yin (9th Cir. 1991) 935 F.2d 990, 1001; People v. Lara (2017) 9 Cal.App.5th 296, 302, fn. 3.)
Here, the evidence showed that Alexander and Juan together approached Daniel and Freddie; Carla tried to distance herself from them. Regarding the actions of Alexander and Juan, Carla testified: "I just remembered they were both doing something. They were - I'm not sure who took what, but they were both taking [Daniel's] items." Officer Martin testified that Carla told her, in contrast, that Juan had taken all of Daniel's items. Similarly, although Carla testified at trial that she did not remember whether Alexander said anything during the incident, Martin testified Carla told her that Alexander had asked Freddie whether he wanted to fight. Based on this record, a reasonable trier of fact could find, beyond a reasonable doubt, either that Juan and Alexander both took Daniel's things, or, that Juan took Daniel's things while Alexander asked Freddie whether he wanted to fight. (See Keyser v. San Diego Electric Ry. Co. (1936) 16 Cal.App.2d 48, 51-52 ["The usual rule is that the [factfinder] may believe a part of a witness' testimony and disbelieve other parts," and "[u]sually this rule must apply to any discrepancies between his testimony on the stand and other statements he may have made, unless it clearly appears that he is not to be believed at all."].) We conclude the evidence was sufficient to sustain Alexander's conviction for robbery on either the theory that Alexander was a direct perpetrator or the theory he was an aider and abettor. We reject Alexander's contention that the entirety of Carla's testimony was of "dubious reliability" because she was terrified, trying to distance herself from the others during the incident, and was not asked to identify Alexander or Juan in court.
Carla testified that she first saw Alexander and Juan walking behind her and Daniel, as the latter two walked from school to a nearby store for lunch. Specifically, she stated: "Well, we were just going to lunch, just me and [Daniel]. Nothing else happened or occurred. [¶] When we were walking, I did turn around and I saw both of them, but they didn't speak to me or nothing. We were just walking. We met Freddie at the store. He was at the store waiting for Daniel." Carla testified she again saw Alexander and Juan when they approached Daniel and Freddie, after Daniel, Freddie, and Carla left the store to "[walk] to a shade." The fact that Carla had seen the older boys before the robbery occurred would have assisted her in identifying them during and after the robbery. --------
Alexander argues that the record does not support his robbery conviction on an aider and abettor theory, because the fact of his mere presence at the scene does not constitute substantial evidence to show that he acted with (1) knowledge of Juan's criminal purpose to rob Daniel and (2) the intent either to commit, or facilitate commission of, the robbery." (See Beeman, supra, 35 Cal.3d at p. 560.) However, to the extent a reasonable trier of fact were to determine that Alexander was an aider and abettor rather than a direct perpetrator, there is substantial evidence in the record to show he acted with the requisite intent. More specifically, the evidence that Alexander and Juan approached Daniel and Freddie together and Juan took Daniel's items while Alexander threatened to fight Freddie, is sufficient for purposes of proving that Alexander acted with the requisite intent.
In short, retrial is permissible here.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.