Opinion
F061631 Super. Ct. No. JJD064889
01-19-2012
In re DAVID N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID N., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, Lewis A. Martinez, and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Commissioner.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, Lewis A. Martinez, and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 10, 2010, appellant, David N., was charged in a petition filed pursuant to Welfare and Institutions Code section 602 with unlawful driving or taking of a vehicle, a felony (Veh. Code, § 10851, subd. (a), count one) and receiving a stolen vehicle, a felony (Pen. Code, § 496d, subd. (a), count two). At the conclusion of a contested jurisdiction hearing, the juvenile court dismissed count one and found count two true. On November 17, 2010, a new petition was filed alleging appellant committed misdemeanor battery (Pen. Code, § 242). On January 3, 2011, appellant waived his rights and admitted the battery allegation.
At the dispositional hearing on January 3, 2011, the juvenile court found count two, the receiving charge, to be a felony. The court ordered appellant to reside with his mother and placed him on probation upon various terms and conditions. Appellant contends on appeal that there was insufficient evidence he knew the vehicle was stolen, the admission of a recording of appellant talking to a codefendant was barred by the Evidence Code, and the juvenile court failed to make the requisite felony finding on count two in accordance with In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.). As explained below, we affirm the juvenile court's orders and findings.
FACTS
Jesus Leon's 2000 blue Chevrolet Tahoe was stolen from his garage in Delano sometime on June 8, 2010. No one had permission to take it.
At 1:56 a.m., on June 10, 2010, Hanford Police Officer Steve Schmitz was dispatched to a call concerning a vehicle that may have been abandoned on Hanford-Armona Road near Ogden Street. When Schmitz arrived, there were two males standing beside a dark blue Chevrolet Tahoe that was stopped in the middle of the road. There were scratches down the driver's side of the Tahoe and the front driver's side tire was flat. The tire appeared to have been driven while it was flat. The two males identified themselves as David N. and Joaquin M.
Joaquin told Schmitz they had run out of gas. Joaquin asked Schmitz to help them push the Tahoe out of the roadway. Both juveniles appeared to be nervous. Joaquin was breathing heavily. When asked why, Joaquin replied that he had been pushing the Tahoe. Schmitz told the minors the fire department had reported an abandoned vehicle in the roadway. One of the minors responded that they were inside the Tahoe when the fire truck passed by. Joaquin told Schmitz he was the driver of the Tahoe. Joaquin said the Tahoe belonged to a friend. Schmitz had the minors sit on the curb.
Hanford Police Officer John Bidegaray was also dispatched to the scene. Bidegaray received information from the dispatcher that the Tahoe had been stolen in Delano. Bidegaray asked the juveniles if they wanted to talk about a stolen vehicle. Joaquin asked to talk to his mother. Both juveniles were arrested. Appellant was given his Miranda rights and chose not to talk to Bidegaray. Appellant was placed in Bidegaray's patrol car. Joaquin was placed in Schmitz's patrol car. Later, the minors were placed together in Bidegaray's patrol car.
Miranda v. Arizona (1966) 384 U.S. 436.
There was a tape recorder in the back seat of Bidegaray's patrol car. After transporting the minors to the King's County Juvenile Center, Bidegaray retrieved the tape recorder and listened to what it recorded. When the prosecutor asked Bidegaray what he heard on the tape, appellant's counsel objected on hearsay grounds and also as a violation of the Secondary Evidence Rule as set forth in Evidence Code sections 1520, 1521, and 1522. The prosecutor stated that the recording was provided to both defense attorneys, the best evidence rule did not require the recording itself be introduced into evidence, the juveniles made declarations against interest, and Bidegaray could testify without violating the hearsay rule.
Unless otherwise indicated, all statutory references are to the Evidence Code.
The court granted defense counsel a recess to research the issue further. After a lengthy legal discussion, the juvenile court concluded that if the minors made declarations against their penal interests, the information testified to by the officer was within an exception to the hearsay rule and admissible.
Appellant's counsel acknowledged that both defense attorneys had a copy of the tape recording.
Bidegaray explained he could not remember the tape recording word for word, but there were some things he remembered. Appellant again objected to Bidegaray's testimony based on the Secondary Evidence Rule and hearsay. The court overruled the objections, noting that counsel had a copy of the tape and could cross-examine the officer.
According to Bidegaray, one of the minors said to not say a word and to keep your mouth shut. Another time, one of the minors said that they should tell the authorities it was one of their homies' cars, he let them borrow it, and the minors did not know it was stolen.
One of the minors said they should have run when they had the chance and left the car. The other minor replied he could not run away because the officer was standing right next to him. Bidegaray thought this last reply came from appellant. There was also conversation concerning how much time they would face if they were arrested. The minors did not say they had stolen the Tahoe or that they knew it was stolen.
SUBSTANTIAL EVIDENCE
Appellant contends there was insufficient evidence that he knew the Tahoe was stolen, and therefore, one of the elements of receiving stolen property was not proven by the prosecution. We disagree.
The juvenile court's findings on appeal are reviewed under the substantial evidence standard. The findings of the juvenile court will not be disturbed on appeal if there is any substantial evidence to support them. (In re John S. (1978) 83 Cal.App.3d 285, 293-294; In re Harvill (1959) 168 Cal.App.2d 490, 492; In re Schubert (1957) 153 Cal.App.2d 138, 143.)
In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, or in this case the juvenile court, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Johnson (1980) 26 Cal.3d 557, 578.)
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129 [questioned on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151]; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Possession of stolen property, accompanied by suspicious circumstances, justifies an inference that the property was received with knowledge it was stolen. Conflicting and unsatisfactory accounts of acquisition of stolen property will justify an inference the property was received with knowledge it had been stolen. (People v. Taylor (1969) 2 Cal.App.3d 979, 984.) This inference can also be drawn where there is no explanation or an unsatisfactory explanation of possession of the stolen property, or if the property was acquired under suspicious circumstances. (People v. Lopez (1954) 126 Cal.App.2d 274, 278; People v. Boyden (1953) 116 Cal.App.2d 278, 288.)
The owner of the Tahoe testified that it was not where he had left it and he had not given anyone permission to drive it. When the vehicle was found, appellant and the codefendant minor were standing next to it. Joaquin admitted driving the Tahoe. The car had sustained visible damage, including a flat tire. It appeared that the Tahoe had been driven on the flat tire for a period of time and it had run out of gas. The officers encountered the minors late at night. Both minors appeared to be very nervous. Joaquin asserted the Tahoe belonged to a friend. Officer Bidegaray learned, however, that the Tahoe was stolen. When confronted with the fact the Tahoe had been stolen, the minors offered no other explanation for how they came to be in possession of it. Appellant did not disassociate himself from Joaquin and they appeared to be close friends.
Viewing the totality of the circumstances surrounding the officers' encounter with the minors, there was possession of stolen property under suspicious circumstances justifying a reasonable inference that both minors had knowledge the Tahoe was stolen. Furthermore, the minors did not have a satisfactory explanation for the possession of a stolen vehicle under suspicious circumstances, again leading to the reasonable inference that they both knew the Tahoe was stolen. Finally, the fact that both minors were close friends and appeared to be operating the Tahoe jointly, together seeking help from Officer Schmitz to move it out of the road, indicates joint control of the vehicle and knowledge it was stolen. (See People v. Land (1994) 30 Cal.App.4th 220, 228.) We conclude there was substantial evidence that appellant knew the Tahoe was stolen.
VIOLATION OF THE SECONDARY EVIDENCE RULE
Appellant contends, and respondent concedes, that the juvenile court violated the Secondary Evidence Rule (§§ 1520, 1521, 1522, & 1523) because the court permitted Officer Bidegaray to testify as to the contents of the tape recorded conversation of the juveniles without listening to the recording of the conversation itself. The parties agree that this case is distinguishable from others in which an officer hears a conversation, records the conversation, and later testifies as to the substance of the conversation. (See People v. Samuels (2005) 36 Cal.4th 96, 129-130.) Here, the officers did not simultaneously listen to the conversation as it was recorded. Respondent argues, however, that although the secondary evidence rule was violated, any error was harmless. We agree with respondent.
We found above that there was substantial evidence that both minors were aware the Tahoe was stolen. We did so without reference to the statements attributed to the minors through Officer's Bidegaray's testimony concerning what he heard from the tape recording. Thus, excluding this testimony, there is still substantial evidence that appellant had knowledge he had received a stolen vehicle.
In case No. F061474, we affirmed on appeal the findings of the juvenile court concerning codefendant, Joaquin M.
We further note that some of the minor's statements were duplicative of what they had already said to the officers. The minors agreed to try to stay silent, which they did after being told the car was stolen, or to assert that the Tahoe belonged to a friend, was what they had already told Officer Schmitz. The statement that the officer was too close to them to have fled can be interpreted as inculpatory, but adds little more to the evidence already establishing the suspicious circumstances surrounding the discovery of the stolen Tahoe. In sum, the introduction of Officer Bidegaray's testimony in violation of the secondary evidence rule did not result in a miscarriage of justice and constituted harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Richardson (2008) 43 Cal.4th 959, 1001.)
One of the minors suggested they should say the Tahoe belonged to a homie, who let them borrow it, and they would say they did not know it was stolen.
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MANZY W.
Appellant argues that the juvenile court failed to properly consider its discretion to determine whether his offense was a misdemeanor or a felony in accordance with Manzy W. (Manzy W., supra, 14 Cal.4th at pp. 1204, 1210-1211; Welf. & Inst. Code, § 702.) We disagree.
The probation report prepared for the disposition hearing stated the offense "may be considered a misdemeanor or a felony" and recommended the violation be found to be a felony. At the disposition hearing, the juvenile court expressly stated it had considered the probation officer's report and that the Penal Code section 496 allegation "is designated a felony." The clerk's minute orders further indicate the offense could be considered a felony or a misdemeanor and that the juvenile court found it to be a felony. We find the juvenile court was clearly aware of its discretion to treat the offense as a misdemeanor and, exercising its discretion pursuant to Manzy W., found it to be a felony. There was no Manzy W. error.
DISPOSITION
The juvenile court's orders and findings are affirmed.