Opinion
D076298
03-16-2020
In re Josue M., A Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent v. JOSUE M., Defendant and Appellant
Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J242135) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy and Aaron H. Katz, Judges. Affirmed. Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A Welfare and Institutions Code section 602 petition alleged that Josue M. imported and possessed methamphetamine weighing over one kilogram. (Health & Saf. Code, §§ 11379, subd. (a), 11378, 11370.4, subd. (b)(1).) The juvenile court found Josue ineligible for informal probation under section 654. The court later found the allegations of the petition true, ordered probation, and placed Josue with his parents. Josue's court-appointed counsel filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
Undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL BACKGROUND
On a day in March 2019, Josue presented himself at the primary port of entry for pedestrians at the Mexico-United States border. A United States customs and border protection officer noticed a bulge in Josue's closed jacket. When Josue ignored the officer's request to open his jacket, the officer handcuffed Josue and took him to the security office. Josue told the officer he had drugs, but claimed he smuggled the drugs because he had been threatened at gunpoint.
Another officer photographed the bulge in Josue's jacket and Josue's midsection. The officer believed the package contained drugs, removed the package from Josue's body, and put Josue in a cell. The package weighed 1.46 kilograms and its contents tested positive for methamphetamine, which the parties stipulated was a controlled substance. A homeland security agent opined that Josue possessed the methamphetamine for the purpose of sales based on the quantity involved, the packaging, and Josue's attempt to conceal the package.
Another homeland security agent interviewed Josue and obtained a search warrant for Josue's cell phone. Josue's cell phone contained photos of a white substance wrapped in clear plastic packaging. The agent also found a conversation in Spanish between Josue and a man named Palone about Josue receiving something and Palone later checking to see if Josue had "cross[ed]." A database search revealed Josue crossed the border frequently.
Josue testified that about a month prior to the smuggling incident, four men approached him and pressured him to get into their car. He described the men as "bad people." One man handed Josue a phone and told him to take the call. The call was from the "boss." The men told Josue that they would come after him unless he paid them. Josue feared for his life.
On the date of the smuggling incident Josue was in Tijuana when the men called him. He agreed to take drugs over the border for the men. Josue claimed that he felt threatened while communicating with the men. While near the border crossing, three guys arrived and "grabbed" him. As Josue struggled to get away, one of the men pointed a gun at him. The men told him that he had to pay $1,000 or cross the border with drugs. The men then forced him to strap the package of drugs around his waist. Josue claimed that he smuggled the drugs because he had been threatened at gunpoint.
After hearing counsel's argument, the court concluded that the People had proven their case beyond a reasonable doubt. The court described Josue as "a very difficult witness to believe," noting "significant flaws and inconsistencies" in his story. The court concluded that the prosecution met its burden of disproving Josue's duress defense, finding there was no immediate threat. It also found that Josue did not prove his necessity defense, stating it did not believe "all the facts of [Josue's] story."
DISCUSSION
Defendant's counsel filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744) whether: (1) the evidence was sufficient as a matter of law to prove that Josue did not act of his own free will, but instead acted under duress; and (2) the juvenile court abused its discretion by denying Josue's motion for informal supervision under sections 654, 654.2, and 654.3. We granted Josue permission to file a brief on his own behalf. He has not responded.
A. Informal Supervision
"The Legislature has mandated that minors who fall within the jurisdiction of the juvenile court as a result of delinquent behavior 'shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.' [Citations.] Consistent with this mandate, the Legislature enacted section 654, which . . . 'authorizes an informal supervision program for a minor who in the opinion of the probation officer is, or will probably soon be, within the jurisdiction of the juvenile court. The purpose of the informal supervision program is to provide assistance and services to the minor and the minor's family to "adjust the situation" and avoid further involvement in the formal juvenile criminal justice system. . . . [¶] In 1989 section 654.2 was enacted to permit the court to order a section 654 informal supervision program for a minor after a section 602 petition has been filed.' " (Derick B. v. Superior Court (2009) 180 Cal.App.4th 295, 300-301.)
There are eight statutory circumstances in which a minor is presumptively ineligible for informal probation. (§ 654.3) Here, Josue was ineligible for informal probation because the petition alleged that he possessed a controlled substance for sale. (§ 654.3, subd. (b).) This presumption may be overcome "in an unusual case where the interests of justice would best be served and the court specifies on the record the reasons for its decision. . . ." (§ 654.3.)
The court denied Josue's motion for informal probation, citing the serious nature of the offense and the amount of drugs involved. The court also disbelieved Josue's defense that he was forced to take the drugs over the border, commenting that the text messages and photographs attached to the People's brief "suggest something far more sophisticated. . . ." The record shows that the juvenile court did not abuse its discretion in denying Josue's request for informal supervision under section 654.2.
B. Sufficiency of Evidence
In evaluating the sufficiency of the evidence supporting a conviction, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "The applicable standard of review is the same as for adult criminal appeals." (In re Amanda A. (2015) 242 Cal.App.4th 537, 545.)
Duress is a defense applicable to defendants who commit crimes, except murder, "under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused." (Pen. Code, § 26; People v. Anderson (2002) 28 Cal.4th 767, 780.) The duress defense "requires a reasonable belief that threats to the defendant's life (or that of another) are both imminent and immediate at the time the crime is committed . . . threats of future danger are inadequate to support the defense." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) In contrast to the duress defense, the necessity defense has traditionally covered situations where physical forces beyond the defendant's control rendered illegal conduct the lesser of two evils. (People v. Heath (1989) 207 Cal.App.3d 892, 899.) The defendant bears the burden of showing "the existence of an emergency situation involving the imminence of greater harm that the illegal act seeks to prevent." (Coffman and Marlow, at p. 100.) The People must prove beyond a reasonable doubt that the defendant did not act under duress (CALCRIM No. 3402), but the defendant has the burden of proving the necessity defense by a preponderance of the evidence (Heath, at p. 901).
The record amply supported the juvenile court's true findings on the charges against Josue and the rejection of Josue's necessity and duress defenses. Significantly, the juvenile court found Josue's story not credible. A reviewing court cannot "substitute [its] evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal. Competent counsel has represented Josue on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. AARON, J.