Opinion
H043473
08-15-2017
In re I.U., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. I.U., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 315JV41330A)
I. INTRODUCTION
Following a contested jurisdictional hearing, the juvenile court sustained a Welfare and Institutions Code section 602 petition alleging that the minor, I.U., committed a felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The juvenile court declared the minor a ward of the court and returned him to the custody of his parents on probation, with conditions including serving 45 days on the Cellular Electronic Monitoring Program.
On appeal, the minor contends the juvenile court erred by finding he had committed the felony assault based in part on evidence that his companion fled when stopped by police. For reasons that we will explain, we will affirm the juvenile court's orders.
II. BACKGROUND
The assault allegation stemmed from an incident on June 19, 2015, in which a group of males assaulted 21-year-old Andrew Sanchez. At trial, the primary contested issue was identity—the minor claimed he was not involved in the assault.
A. Testimony of the Victim
On June 19, 2015, Sanchez and his fiancée, who was pregnant, decided to ride scooters to a movie theater. They scootered down King Road towards the Eastridge Mall. About 5:00 p.m., they passed a Hispanic male on a bike who was wearing a Warriors or Lakers basketball jersey. The male on the bike offered Sanchez an orange, but Sanchez declined it. Sanchez and his girlfriend then passed a group of three or four males who were whispering to each other and giving Sanchez "weird looks." The group included a heavyset male, who was wearing a sweater with a white shirt underneath, and the minor, who was skinnier and wearing a tank top.
Sanchez's fiancée, Maritza Hurtado, testified at the jurisdictional hearing, but her testimony was not completed and was later stricken.
Sanchez heard one of the males make a threat, so he turned around to look. The heavyset male made an aggressive gesture with his hands, and then the group of males began walking towards Sanchez. Sanchez asked what the group wanted, and the heavyset male accused him of having "a fucking problem." The heavyset male had a chewed-up orange in his mouth, and he spit it out and threw it at Sanchez.
Sanchez was holding his scooter, and he refused to put it down when the heavyset male ordered him to. The next thing Sanchez knew, "fists just started flying." Sanchez tried to run, but the heavyset male grabbed his shirt and threw him on the ground. The group of males then kicked and punched Sanchez, and they yanked his scooter from his hands. Sanchez tried to get up, but the minor grabbed his shirt and he was knocked back down to the ground. Sanchez felt about 15 to 20 kicks and punches. He saw the minor "stomping" and kicking him.
Eventually, Sanchez was able to get up and run to his fiancée. He spoke to a 911 dispatcher and watched the group of attackers go down Enesco Avenue towards Aida Avenue. Sanchez followed them to make sure they did not get away. When the group noticed him, the heavyset male ran towards Sanchez's fiancée, pushed her, and threatened her. Sanchez chased the heavyset male and saw him run into a house on Rigoletto Drive. The other three males ran in a different direction, southbound on King Road.
Sanchez eventually ran back towards the location of the assault, where he met an officer. The officer took Sanchez to make an identification of two suspects. One was the male in the basketball jersey who had been on a bicycle. The other was the male in the tank top: the minor. Sanchez recognized the minor's young face as well as his tank top.
At the jurisdictional hearing, Sanchez identified the minor as the skinnier male who was wearing a tank top. He was "110 percent" sure of his identification because he remembered seeing the minor's face when he was on the ground getting kicked. Sanchez also identified a photograph as depicting the male in the basketball jersey who had been on a bicycle, and he identified a photograph of a male who appeared to be the minor.
B. Eyewitness Testimony
About 5:00 p.m. on June 19, 2015, Aileen Angel was driving in a car with her sister and her children. As she turned onto Rigoletto Drive, she heard a female scream for help. Angel parked her car and watched as a group of males attacked a young Hispanic man. She saw some people get out of a car and break up the fight. Afterwards, the perpetrators of the assault "took off" and left the man on the street. The perpetrators went southbound on King Road towards Silver Creek Road.
Angel called 911. She described a group of "about 5 guys" who had been hitting the victim with a scooter, and who were walking away after committing the assault. One was wearing a black shirt and khaki pants; another was wearing a white shirt and blue jeans. A third male had a bike and was wearing a black Warriors shirt.
At the jurisdictional hearing, Angel initially testified there had been "four or five men" kicking the victim, but she later testified there had been "three guys" attacking the victim. All of the attackers appeared to be Hispanic and "[n]o older than 18."
C. Police Investigation
At 5:11 p.m., officers were dispatched to the scene of the assault. At 5:53 p.m., officers detained the minor and Michael C., who was wearing a Warriors jersey. The minor and Michael had been riding bicycles in the area. When the officers activated the lights and sirens of their patrol car, Michael "tried to pedal away faster," but an officer was able to detain him.
San Jose Police Officer Francisco Vallejo contacted Sanchez and conducted the in-field identification. He admonished Sanchez prior to the identification that the persons he would see "may or may not be involved in the case." Sanchez positively identified the minor, noting that he recognized his face and tank top, and he identified the person in the Warriors jersey.
D. Defense Witnesses
The minor's sister testified that the minor was not involved in the assault. She had been at home that day, with a friend. A group of the minor's friends came over. The minor, who had been asleep, came downstairs to talk to his friends. The minor's sister and her friend left the house and walked down King Road. They ran into Michael, who indicated he was going to pick up the minor. Michael and the minor later passed by the minor's sister and her friend, riding their bikes. After going to a 7-Eleven to buy snacks, the minor's sister saw that the minor and Michael were in a police car.
The minor's father testified that the minor's sister and her friend left the house when the minor's friends came over about 4:00 p.m., and that Michael arrived before the other friends. After hearing that "something happened down the street," the minor's father told the minor to have his friends leave and to go check on the minor's sister. The minor and Michael left about five or 10 minutes later, on bicycles. About five minutes later, the minor and Michael returned, with the police behind them.
The minor's mother testified that the minor was at home when the minor's sister left for 7-Eleven. After the minor's sister left, the minor's mother heard a siren. She went to the front of the house, where she saw the minor in a police car. At most, two hours had passed since the last time she had seen the minor.
The minor testified that he had been sleeping all day because he had been up late the night before, playing video games. His parents woke him up when his friends came over. He did not really know two of the people who came over; he knew only his friend Alejandro. The minor spoke with his friends for about half an hour. His friends then decided to go play street hockey. The minor stayed home, and Michael came over with his bicycle.
The minor's father asked him to go check on the minor's sister and her friend. The minor and Michael rode down the street on their bicycles. The minor saw that his sister and her friend were okay, so he and Michael went to Michael's house to get hockey gear. The minor planned to go back to his house to get his own hockey gear.
On the way to Michael's house, the minor and Michael passed by Sanchez, Sanchez's fiancée, and the three males who had come to the minor's house earlier that day. The three males were talking to Sanchez, who said "something about the cops." The minor and Michael "took off." Soon afterwards, they were detained by police officers.
E. Petition , Findings , and Disposition
A Welfare and Institutions Code section 602 petition was filed on June 23, 2015, alleging the minor committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). After a jurisdictional hearing, the juvenile court found the allegation true. The juvenile court also found that the assault was a Welfare and Institutions Code section 707, subdivision (b) offense.
In finding the minor had committed the assault, the juvenile court stated: "So the Court has read and reviewed all the evidence in this case . . . . I do not have a reasonable doubt. I think [the minor] was involved in this." The juvenile court first noted that the minor himself had admitted that he had been walking down the street and seen "the three guys who are at his house" talking to Sanchez and his fiancée. The juvenile court pointed out that the minor's testimony thereby "puts both [the minor] and Michael at the key event." The juvenile court noted that Angel, the eyewitness, had been "adamant" that the entire group had been involved in the fight, and that her descriptions of two of the participants matched the minor and Michael. The juvenile court also noted that Sanchez had given a similar description of the minor and had identified the minor in court "with 100 percent certainty," as well as at the in-field show-up.
The juvenile court's final comments were as follows: "And then I think there's one other piece of evidence that normally you wouldn't attribute to [the minor], but that is when [the minor] and Mike were stopped, Mike tried to get away and that shows a bit of a consciousness of guilt." The juvenile court explained that Michael's flight attempt was "harmful" to the minor because the minor's own testimony had put the minor with Michael throughout "the entire scenario." The court further explained, "And so if one of them is running because they have a consciousness of guilt and they are both together, I think that bleeds off onto [the minor] as well."
At the dispositional hearing, the juvenile court declared the minor a ward of the court and returned him to the custody of his parents on probation, with conditions including serving 45 days on the Cellular Electronic Monitoring Program.
III. DISCUSSION
The minor contends the juvenile court erred by finding he had committed the felony assault based in part on evidence that his companion, Michael, fled when stopped by police. He contends that Michael's flight was irrelevant to his own guilt and that the juvenile court's error violated his "due process right to a fair trial" under the federal constitution.
A. Cognizability/Forfeiture
The minor did not object when the juvenile court indicated that Michael's flight attempt indicated a consciousness of guilt that was "harmful" to the minor. The Attorney General contends the minor thereby forfeited this claim.
"The forfeiture doctrine is a 'well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.]' [Citations.] Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
The minor first contends his trial counsel preserved the issue by arguing that the evidence did not prove the minor's guilt beyond a reasonable doubt. However, nothing in his trial counsel's closing argument related to the question of whether Michael's flight showed a consciousness of guilt that could be attributed to the minor. The minor's trial counsel argued only that the eyewitness identifications were not reliable and that the evidence did not show the minor's participation in the assault beyond a reasonable doubt. But on appeal, the minor is not challenging the sufficiency of the evidence to support the juvenile court's findings. (Cf. People v. McCullough (2013) 56 Cal.4th 589, 596 [a sufficiency of the evidence challenge to a judgment may be presented for the first time on appeal because the appealing party " 'necessarily objected' to the sufficiency of the evidence" at trial].) The minor's closing argument did not preserve for appeal the question of whether the juvenile court could properly find the assault allegation true based on the evidence of Michael's attempted flight.
The minor next points out that under Penal Code section 1259, an appellate court may "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." However, the minor is not challenging a jury instruction in this case. (See People v. Homick (2012) 55 Cal.4th 816, 884 [since section 1259 "applies to instructions," defendant forfeited appellate challenge to trial court's "statement," which did not direct the jury on any legal point and thus was "not an instruction"].)
We conclude the minor's claim was forfeited. By failing to raise a timely objection to the juvenile court's reliance on the evidence of Michael's attempted flight, the minor deprived the juvenile court of an opportunity to correct or clarify its findings. (Cf. People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture rule applies to claims of "defects in the court's statement of reasons" at sentencing, because such defects "are easily prevented and corrected if called to the court's attention"].)
B. Ineffective Assistance of Counsel
Alternatively, the minor claims his trial counsel was constitutionally ineffective for failing to object when the juvenile court indicated that Michael's flight attempt indicated a consciousness of guilt that was "harmful" to the minor.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the judgment must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; In re Angel R. (2008) 163 Cal.App.4th 905, 910 [applying same standard in juvenile delinquency proceeding appeal].)
The minor contends it is "well established" that "evidence of the flight of one participant is not admissible as to another participant." He argues, therefore, that a reasonable attorney would have objected when the juvenile court indicated it considered Michael's flight attempt as a factor supporting its findings.
The minor cites People v. Pitts (1990) 223 Cal.App.3d 606 (Pitts) and People v. Mora (1956) 139 Cal.App.2d 266 (Mora) in support of his claim. Those cases hold that where there are multiple defendants, and the evidence shows flight by only one or some of the defendants, a flight instruction should be modified to limit its application only to the defendant or defendants who fled. (Pitts, supra, at p. 879; see also Mora, supra, at p. 274.) In other words, the jury should not be instructed that it may consider one defendant's flight "as evidencing a consciousness of guilt on the part of all defendants." (Pitts, supra, at p. 879.)
An instruction on flight is authorized by Penal Code section 1127c: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given." (See also CALCRIM No. 372.) --------
In the instant case, there was no flight instruction. But even assuming that Pitts and Mora stand for the proposition that the trier of fact may not infer a person's consciousness of guilt based on the flight of another person, the juvenile court here did not violate that principle. The juvenile court did not infer the minor had a consciousness of guilt based on Michael's flight. Rather, the juvenile court considered the evidence of Michael's flight as showing Michael had a consciousness of guilt, which contradicted the minor's alibi. Since the minor had testified that he and Michael were together at the time Sanchez was being confronted by the others, and that neither he nor Michael were involved in the assault, Michael's attempt to flee was relevant to show that the minor's testimony was untrue. Thus, the juvenile court's findings did not violate the principle that a person's consciousness of guilt may not be inferred from another person's flight, and trial counsel's failure to object did not fall below a standard of "reasonable competence." (See Anderson, supra, 25 Cal.4th at p. 569.)
Even if we assume that reasonable trial counsel would have objected because the juvenile court's findings indicated that the court inferred the minor's consciousness of guilt from Michael's flight, the record does not show that the minor was prejudiced. The juvenile court's findings indicate other evidence was significant in finding that the minor was involved in the assault. The juvenile court emphasized that the minor's own testimony had put himself at the scene and in the company of the other identified participants in the assault. The juvenile court also highlighted the fact that Angel, the eyewitness, had been "adamant" that the entire group had been involved in the fight, that Angel's descriptions of two of the participants matched the minor and Michael, and that Sanchez had given a similar description of the minor and had identified the minor in court "with 100 percent certainty," as well as at the in-field show-up. The juvenile court's statements show that even if the minor's trial counsel had objected when the juvenile court discussed Michael's flight attempt, there is no reasonable probability that " ' "the result of the proceeding would have been different." ' " (Anderson, supra, 25 Cal.4th at p. 569.)
IV. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.