Opinion
A153277
04-24-2018
In re D.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV02810601)
16-year-old D.P. (appellant) appeals from the juvenile court's order adjudging him a ward of the court and placing him on probation in the custody of his parents for unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 2017, a juvenile wardship petition was filed charging then-15-year-old D.P. with one felony count of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and one felony count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). After a contested jurisdictional hearing, the juvenile court found both counts true. At disposition, the court adjudged D.P. a ward of the court and placed him on probation in the custody of his parents. The court imposed standard conditions of probation, including a warrantless search and seizure clause, a curfew, counseling, volunteer work, drug testing, a no-contact order related to the victim and friend involved in the incident, and prohibitions on the knowing possession of illegal drugs, dangerous or deadly weapons, and burglary tools. The court also imposed a $100 restitution fine (Welf. & Inst. Code, § 730.6) and reserved jurisdiction to impose victim restitution at a later date.
Phanmaha Litxayaleuth reported his silver 2001 Mazda 626 LX stolen at approximately 2:40 a.m. on April 4, 2017, after his neighbors knocked on his door to tell him they had seen someone take his car. The last time he had seen the car was when he parked it in front of his house the night before it was stolen. Only he and his wife had keys to the car; he did not know appellant and had never given him permission to use his car. Litxayaleuth's car had also been stolen the week before.
Although the car listed in the original petition was a 2007 Toyota Camry, the prosecutor stated at the jurisdictional hearing that the stolen car was actually a 2001 Mazda 626. The juvenile court granted the prosecutor's unopposed request to amend the petition to reflect the correct car.
At approximately 1:15 a.m. on April 9, 2017, Oakland Police Officer Kim Armstead was traveling westbound with her partner in the 8200 block on International Boulevard in Oakland when their license plate reader (LPR) system alerted them that a stolen car—a silver 2001 Mazda 626—was traveling eastbound on the same block. The LPR system uses cameras to detect license plate numbers and alerts officers of cars that have been reported stolen. Armstead confirmed the car was stolen through "wants and warrants."
During her testimony, Armstead mentioned that the LPR system provides a picture of the stolen car and its license plate. Defense counsel raised a potential Brady issue (Brady v. Maryland (1963) 373 U.S. 83 [requiring the prosecution to turn over all exculpatory evidence to the defendant in a criminal case]), stating the prosecution should have turned over any existing LPR photographs. The trial court directed the prosecutor to look into whether such photographs existed. Thereafter, the prosecutor provided the requested photographs, but the photographs were too dark to determine the identity of the driver or passenger of the stolen car.
Armstead's partner, who was driving the patrol car, made a U-turn at 82nd Avenue to pull behind the stolen car and to follow it. The officers followed without lights and without attempting to pull the stolen car over because they were waiting for their cover unit to arrive. They followed the stolen car within a distance of half a block, sometimes less, but never bumper to bumper.
Shortly after the cover unit arrived, the stolen car made a turn and sped off mid-block on 87th Avenue, changing speed from approximately 20 or 25 miles per hour to 45 or 50 miles per hour. After ignoring a stop sign, the stolen car was broadsided by a 2007 Toyota Camry that was traveling through an intersection.
Armstead and her partner exited their patrol car, turned on their personal recording devices, removed their firearms, and gave commands to the passenger and driver of the stolen car. Armstead identified the driver as appellant and testified that she saw him in the driver's seat within two seconds of the car coming to a rest after the collision. She had a "direct view" of the driver and did not focus on the passengers of the 2007 Toyota Camry because her attention was on the stolen car. Armstead later said she did not see appellant's face until after the accident and that she could not see into the car until she was much closer. She maintained that she approached the stolen car on foot within two or three seconds of the accident and that she was able to see into the car "immediate[ly]." She had "no doubt" that appellant was in the driver's seat, and did not believe there was enough time for either the driver or the passenger to have moved.
Armstead believed she turned on her body camera upon exiting the patrol car, but the video footage from her camera began with appellant already out of the car, standing with his hands up.
Armstead testified that appellant was taller by four inches and heavier than the person she identified as the passenger. Photographic evidence confirmed that the passenger had blood on his shirt.
Armstead saw appellant try to get out of the car through the driver's side door, then climb out through the driver's side window because the door was jammed. Appellant then toppled out of the window as Armstead and her partner instructed him to put his hands up. The passenger, who she identified from a photograph produced at the hearing, also exited through the driver's side window, behind appellant. Two phones were recovered from the stolen car.
Appellant testified that he first saw the Mazda on the night of the accident, April 9, 2017, when his classmate, Angel, picked him up at his house around midnight. Appellant rode in the front passenger seat. They planned to go out to a friend's house, which was located "in the 80s." Before leaving appellant's neighborhood, appellant and Angel called their friend whose house they were going to, then pulled over a block away to smoke marijuana for 15 to 30 minutes. Angel never told appellant that the car was stolen or to whom it belonged.
Appellant testified that he did not notice the police officers following them until Angel started to speed at about Holly Street and 87th Avenue. Approximately three seconds after Angel sped up, the car went through a stop sign and collided with another car. Appellant was "in shock" after the accident and tried to open the passenger door, but it "didn't work," so his "only option was going through the left side." He took off his seat belt, stepped on his seat, and went head first through the driver's side window. Exiting from the passenger seat through the driver's side window took less than three to five seconds. In the process of exiting, he noticed he was bleeding. He also suffered back pain, cuts on his face, and a "busted lip" but did not feel the effects until he was at the hospital later. He testified that an iphone and a canister that were found in the car belonged to him.
Appellant testified that police "immediately" contacted him upon his exit through the driver's side window. Appellant gave a statement to police in the back of the patrol car, which an officer wrote down, but he was not sure if he reviewed it. Appellant was angry and afraid after the accident. He initially lied that he did not know his classmate's name, "[b]ecause where I'm from, if they know you're [snitching], it leads to, you know, getting your ass beat or death." He cursed at police because "they put me in the back of the cop car with . . . blood leaking down my neck," and "nobody would help me" when he asked for help.
DISCUSSION
Appellant's counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------