Opinion
A131265
02-02-2012
In re FRED R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FRED R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J101611101)
Fourteen-year-old Fred R. was found, on allegations of a juvenile court wardship petition (Welf. & Inst. Code, § 602), to have committed a robbery (Pen. Code, § 211)and assault by means of force likely to produce great bodily injury (Former § 245, subd. (a)(1), as amended by Stats. 2004, ch. 494, § 1, p. 4040). He challenges the sufficiency of the evidence identifying him as one of the perpetrators. He further contests a probation condition imposed by the court restricting his movements as overbroad and unconstitutional. We affirm, but remand to the juvenile court for minor corrections of the record.
All further statutory references are to the Penal Code unless otherwise indicated.
I. B ACKGROUND
On December 10, 2010, at about 10:00 p.m., minors Sharon B. and Angelique G. were in the parking lot in front of Eastmont Mall on 73rd Avenue in Oakland. They had gone to a nearby police station to get assistance for a friend who was being assaulted by a boyfriend, but found that the station was closed. A group of five males and one female approached the girls, shouting "don't be snitches." An older male from the group grabbed Sharon's purse and she resisted. The boys surrounded Sharon, and the group pulled her to the ground, kicking and hitting her in the face and body. Angelique ran to a nearby McDonald's restaurant to contact security and get help. The older male was able to pull Sharon's purse away from her, and the group ran off. Sharon was unable to attend school on the following Monday, December 13, because she was still swollen and sore from the attack and had a black eye. She returned to school on Tuesday, December 14.
Sharon testified that she recognized Fred R. as one of her assailants at the time of the attack because he attended her high school, and he had briefly been in one of her classes, although she did not know his name. She said that, during the attack, Fred R. hit her from behind and participated in kicking her when she was on the ground.
In his testimony, Fred R. acknowledged that he had been in a geometry class with Sharon at the beginning of the year.
On December 14, Angelique, also a student at Sharon's high school, happened to see Fred R. in a school counselor's office and recognized him as one of the assailants. Later that morning she told Sharon that she thought she had seen one of the attackers, but wanted Sharon "to see if it was the same person." Sharon and Angelique were together when they saw Fred R. in the lunch line at a school snack bar. Sharon pointed him out and said "Look, that's the guy." Angelique agreed. Fred R. made eye contact with Sharon and Angelique and then quickly walked away.
The two girls went to the school security officer and reported that they had seen one of the people who had robbed Sharon. While they were in the principal's office, Sharon saw Fred R. walk by and pointed him out to the officer taking her statement. She testified that she was "one hundred percent positive" in her identification. Both girls identified Fred R. in court.
The defense challenged the accuracy of the identification and offered an alibi. On cross-examination, both Sharon and Angelique acknowledged that they had consumed alcohol prior to the incident. Sharon testified that had two or three sips of vodka from a bottle and Angelique said that she had only one. Sharon said that on the night of the incident she told the police officer investigating the robbery, Oakland Police Officer Barocio, that she knew one of her assailants from school and that he had hazel eyes. She also testified that she told the officer that Fred R. was wearing a hood, and she therefore could not see his hair that night. Barocio, called as a defense witness, said that he did not recall Sharon telling him that one of the robbers went to her school, or that one of the boys was wearing a black hoodie, and that these items were not included in the statement which he had her sign.
Sharon also told Barocio that she could "positively identify all of them."
Fred R.'s mother testified that Fred R.'s hair had been dyed red about two or three weeks before the incident, and that it was cut in a Mohawk style. Fred R. testified that during the time period when the robbery occurred he was first at a friend's house and then at the home of his godmother, Lisa Thomas, where he spent the night. Thomas testified in support of Fred R.'s alibi.
At the close of the evidence, and following argument by counsel, the court found that Fred R. "committed the robbery and the felony assault [on Sharon]."
The court made no finding on two other charges of attempting to dissuade a witness (§ 136.1) and assault on Angelique (§ 240).
II. DISCUSSION
A. Sufficiency of the Evidence
Fred R. argues that "there is no sufficient credible evidence that [he] was in the parking lot of the Eastmont Mall early Saturday morning, December 11, 2010, when the robbery and assault occurred." He contends that "no rational trier of fact could have found proof beyond a reasonable doubt that [he] was one of the boys who had taken part in the assault and robbery of Sharon." We disagree.
The standard of review is well established. " 'A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them.' " (In re Jose R. (1983) 148 Cal.App.3d 55, 59.) " ' "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination ____" ' [Citations.]" (People v. Semaan (2007) 42 Cal.4th 79, 88.)
In determining whether there is sufficient evidence to support a court's findings, we review the entire record in the light most favorable to the prosecution to see if any rational trier of fact could have been so persuaded. (People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) It is the exclusive province of the trier of fact to determine the credibility of a witness and to resolve evidentiary inconsistencies, and we must defer to the factfinder's credibility resolutions. (People v. Young (2005) 34 Cal.4th 1149, 1181.) " 'It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1258.) "To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear [citations]." (People v. Ozene (1972) 27 Cal.App.3d 905, 910.)
Fred R. characterizes the identification of him by both Sharon and Angelique as "questionable" because "(1) the girls did not have a good opportunity to view the attackers; (2) neither mentioned to the police immediately after the incident that [he] had a red Mohawk haircut, his most distinctive characteristic; and (3) Sharon gave the officer only a general description of the group of attackers and did not tell the officer the material fact that she allegedly recognized one of the assailants from school." He insists that their testimony must be rejected as "inherently improbable."
A reviewing court may reverse a judgment if the evidence supporting it is "inherently improbable," but testimony that "merely discloses unusual circumstances" does not fall within that category. (People v. Huston (1943) 21 Cal.2d 690, 693 (Huston), overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352; People v. Ennis (2010) 190 Cal.App.4th 721, 728-729 (Ennis)) " 'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' (Huston, at p. 693.) Such cases are rare indeed. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.)" (DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 261 (DiQuisto), parallel citation omitted.) Testimony may be rejected as inherently improbable or incredible only when it is " ' "unbelievable per se," ' physically impossible or ' "wholly unacceptable to reasonable minds." ' " (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) A finding that testimony is inherently improbable is "so rare as to be almost nonexistent." (Ennis, supra, 190 Cal.App.4th at p. 728.)
"The inherently improbable standard addresses the basic content of the testimony itself—i.e., could that have happened?—rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be 'inherent,' and the falsity apparent 'without resorting to inferences or deductions.' ([Huston], supra, 21 Cal.2d at p. 693.) In other words, the challenged evidence must be improbable ' "on its face" ' (People v. Mayberry (1975) 15 Cal.3d 143, 150 . . . ), and thus we do not compare it to other evidence (except, perhaps, to certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened? [Citation.]" (Ennis, supra, 190 Cal.App.4th at p. 729.)
" 'Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' [Citations.]" (People v. Mohamed(2011) 201 Cal.App.4th 515, 521.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (Huston, supra, 21 Cal.2d at p. 693.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Fred R. merely seeks to reargue the evidence on appeal. " '[I]t is not a proper appellate function to reassess the credibility of the witnesses.' [Citation.]" (People v. Thompson (2010) 49 Cal.4th 79, 125.) Fred R. "invites us to usurp the juvenile court's factfinding role, which we decline to do. [Citation.]" (In re S.A. (2010) 182 Cal.App.4th 1128, 1150.)
Finally, Fred R. contends that the manner in which Sharon and Angelique identified him was impermissibly suggestive and was the product of "mutual reinforcement of opinion," requiring reversal under People v. Nation (1980) 26 Cal.3d 169, 180 (Nation). In Nation, three girls were shown photographs of sexual assault suspects. One of the girls selected a mug shot of the defendant and informed the other two girls she had found the assailant. After some discussion, the other girls agreed. The police officer gave the girls the defendant's mug shot to take home to show two other possible witnesses. (Id. at p. 174.) None of the girls was able to identify the defendant in a subsequent lineup, and the girls were told after the lineup that they had selected the "wrong" man. None of the girls was able to identify the defendant in court. (Ibid.) The conviction was reversed on the basis of ineffective assistance rendered by trial counsel in failing to raise the issue of use of impermissibly suggestive identification procedures. (Id. at pp. 181-182.) There were no impermissibly suggestive police or prosecutorial police practices utilized in this case. " '[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.' [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1250-1251.) Unless there is a challenged procedure that is impermissibly suggestive, " 'our inquiry into the due process claim ends.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 412.) Nation has no application here. The circumstances of the identification here go only to the weight of the evidence, not its admissibility. B. Probation Conditions
One of the probation conditions imposed by the court was a requirement that Fred R. "not . . . leave [his] residence overnight nor the county without prior permission of both [his] parent and probation officer." Fred R. claims this probation condition is unreasonable and unconstitutionally infringes upon his right to travel. (In re White (1979) 97 Cal.App.3d 141, 148.)
The condition contained in the written order required only permission from the probation officer. The court's oral pronouncement required permission from both Fred R.'s mother and his probation officer. The oral pronouncement governs. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
1. Reasonableness
Fred R. acknowledges that his counsel did not object to imposition of this condition, and that preservation of a challenge to conditions of probation based on unreasonableness normally requires that an objection be made in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).) However, the People do not assert forfeiture of this claim and agrees that the issue presents "a pure question of law" that "is capable of correction without reference to the particular sentencing record developed in the trial court." (Id. at p. 887.)
"We review conditions of probation for abuse of discretion. [Citations.]" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin); In re Walter P. (2009) 170 Cal.App.4th 95, 100). For a probation condition to be invalid as an unreasonable exercise of discretion it must (1) have no relationship to the crime of which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct which is not reasonably related to future criminality. (Olguin, at p. 379; People v. Lent (1975) 15 Cal.3d 481, 486.) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Olguin, at p. 380; In re Luis F. (2009) 177 Cal.App.4th 176, 188 (Luis F.); see also Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1180; In re G.V. (2008) 167 Cal.App.4th 1244, 1250; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034.)
Fred R. asserts that a condition forbidding him to leave Alameda County without permission is unreasonable because it prohibits conduct that is not in itself criminal, that it bears no relation to the offenses he committed, and that it will not prevent him from committing crimes in the future. We disagree. The juvenile court could reasonably conclude that deterrence of future criminal conduct by Fred R. would be best served by close supervision of him by the probation officer and his mother, and that limiting his travel to that approved by a parent/probation officer would facilitate that supervision. Fred R. posits that the probation condition may instead impede his rehabilitation by prohibiting him from participating in afterschool programs, visiting relatives, going to the dentist, or taking a vacation. As the People correctly observe, however, Fred R. may do any of these things once he has obtained permission. We find no abuse of discretion.
2. Constitutionality
A juvenile court has broad discretion in formulating probation conditions, and "may impose ' "any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." ' [Citations.]" (Sheena K., supra, 40 Cal.4th at p. 889; see Welf. & Inst. Code, § 730, subd. (b).) Because of the juvenile court's unique role in caring for the minor's well-being, the scope of permissible discretion is even greater than that allowed for adult probationers. (In re Victor L. (2010) 182 Cal.App.4th 902, 909-910 (Victor L.).) Accordingly, " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " (Sheena K., at p. 889; Victor L., at p. 910.) The court's discretion is not boundless, and is still limited by the overbreadth doctrine. A probation condition may be overbroad if it prohibits constitutionally protected conduct. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The overbreadth doctrine requires that juvenile "conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. [Citations.]" (Luis F., supra, 177 Cal.App.4th at p. 189.)
We have already found that the probation condition is reasonably related to preventing future criminality. It is also narrowly tailored since it does not prohibit Fred R. from traveling outside the county. He is required only to obtain permission from his probation officer and his mother before doing so. We find no unconstitutional infringement of his right to travel.
3. Modification
Fred R. alternatively requests modification of his probation condition, more narrowly tailoring it to require either the consent of his mother or the probation officer. The People do not object to the request. Since, as we discuss post, it appears that record corrections are otherwise required, we think that the juvenile court should consider this request in the first instance. C. Correction of the Record
Fred R. and the People agree that the "Juvenile Detention Disposition Report" filed with the California Department of Justice has two errors requiring correction. The disposition report states that Fred R. admitted counts 1 and 2 after advisement and waiver of his rights. As set forth above, this was a contested dispositional hearing, with findings made by the court. The plea section of the dispositional report should have been left blank. The dispositional report also notes that Fred R. was placed on probation for a period of 72 months, but the court's sentencing determination on January 27, 2011, does not specify a probationary period. We will remand to the trial court for correction of the record.
The court did determine a maximum six year term for the offenses at the time of the jurisdictional finding on January 12, 2011.
III. DISPOSITION
The jurisdictional and dispositional orders of the juvenile court are affirmed. We remand to the trial court to set the term of probation, to consider Fred R.'s unopposed request for modification of Fred R.'s travel restriction, and for appropriate correction of the Juvenile Detention Disposition Report.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Simons, J.