Opinion
C085535
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. M. R., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV138539)
A petition filed March 23, 2017, alleged the minor, M. R., came within the provisions of Welfare and Institutions Code section 602 in that he committed robbery.
On July 6 and 7, 2017, a contested jurisdictional hearing was held. On March 1, 2017, around 5:30 p.m., the victim, J. V., was walking home from baseball practice at his high school, talking on his telephone. He noticed seven young men in a driveway; he got a "bad vibe," crossed the street, and continued walking. The young men followed him for "about six houses." J. V. could hear their footsteps "rushing toward [him]."
One of the young men approached J. V., jogging next to him, and said, "give me everything you have." He then pulled up his shirt and showed J. V. a gun. J. V. stopped walking and all of the young men "surrounded" him. J. V. did not recognize the young man with the gun, but he recognized one of the young men from school -- M. R. M. R. was standing next to the young man with the gun. J. V. recognized another young man from school as well, "Wesley"; J. V. and Wesley played football together.
J. V. handed his phone to the young man with the gun. The young man gave the phone back to J. V. and directed him to remove his password and log off his iCloud. J. V. did as he was told and handed the phone back. M. R. then began searching through J. V.'s backpack, without J. V.'s permission. M. R. took $10 from J. V.'s backpack. J. V. was scared about what the young men would do to him and worried about his phone.
J. V. spoke up and told M. R. that he recognized him from school. In response, M. R. backed away and argued with the others that they should give J. V. back his "stuff because J. V. recognized him. M. R. walked back to J. V. and said, "you're probably confusing me with Jamal." J. V. asked how M. R. knew Jamal and how did he know that J. V. knew Jamal. J. V. had seen M. R. and Jamal together outside of school.
M. R. then asked J. V. what size were his shoes. J. V. lied and said they were a size eight because he did not want M. R. to take his shoes. M. R. backed up and the young men all walked away. J. V. closed his backpack and walked home. Shocked and scared, he went to his neighbors' house to call his parents. When his parents came home, J. V. called the police. J. V. was able to describe three of his assailants: the young man with the gun, M. R., and Wesley.
J. V. described the young man with the gun as black, approximately 16 years old, "short," approximately 135 pounds, wearing a black sweater and a black shirt with ripped up, gray jeans. He described the young man he identified as M. R. as approximately six feet, two inches tall, "chunky" at about 170-180 pounds, bigger than J. V., and wearing his hair in brown or gold dreadlocks that were about two inches long.
Sacramento County Sheriff's Deputy David Schramm was assigned to J. V.'s high school as a resource officer; he interviewed J. V. about one week later. J. V. described to Deputy Schramm the incident that took place on March 1, 2017. He also described the young man who went through his backpack as "16 to 18 years old, African-American, sort of chunky or chubby build with black hair that sort of stood up with like red tips or highlights." J. V. estimated the young man to be about six feet tall and to weigh over 200 pounds.
Based on J. V.'s description, Deputy Schramm put together a photographic lineup of six different young men using the 2016-2017 photo album for the high school. He picked M. R. from the lineup based on J. V.'s description, which M. R. closely matched. He picked the five others based primarily on their similar hairstyles. He included a picture of "Jamal" in the lineup because he resembles M. R.
Deputy Schramm advised J. V. that the suspect may not be in the lineup and that their "current images may be different than the photos I showed him, . . . ." Deputy Schramm also advised J. V. to "take his time." J. V. identified M. R. as the young man who went through his backpack and took $10. M. R. was subsequently detained. At the time he was detained, M. R. looked the same as he did in the lineup photo.
At trial, J. V. identified M. R. in the courtroom as the young man who rummaged through his backpack and took $10. He testified that he was 100 percent certain it was M. R. who took his $10. J. V. acknowledged that M. R. never brandished a weapon or threatened him, but testified that he was scared and believed the young men were acting together. He said the discrepancy in height between his 911 call, describing the suspect as five feet nine inches, and his in court description of the suspect as six feet tall, was because at the time of the 911 call, he was in shock. He was clear that when the incident happened, he was looking eye to eye with the suspect and J. V. is six feet, one inch tall.
M. R.'s mother Nina testified on M. R.'s behalf. She was in the hospital on March 1, 2017, and remembered that day specifically because they were celebrating her other son's birthday and she gave M. R. his EBT card. She originally testified that M. R. was with her around 3:30-4:00 p.m., along with several other family members but later remembered he came after dinner, which was served at 5:00 p.m. She remembered M. R. leaving the hospital with his father around 8:00-9:00 p.m., but acknowledged she never gave that information to the public defender's investigator. She testified that, while hospitalized, she was being medicated with Norco and gabupentin. She also testified that M. R.'s hair style was common and he stood about five feet, nine inches, to five feet, 10 inches tall.
M. R.'s brother, Victor, testified that on March 1, 2017, he arrived at the hospital around 6:30 p.m. and M. R. was already there. Victor did not remember when M. R. left the hospital but he knew it was nighttime. He gave conflicting testimony about whether the birthday celebration was February 28 or March 1.
Counsel stipulated to statements taken by the public defender investigator that: (1) she spoke to Victor who told her M. R. was already at the hospital when he arrived and stayed after Victor left; and (2) Nina did not remember what time M. R. arrived at the hospital, that Nina was in pain and on medication, and M. R. was at the hospital on March 1, 2017, until his father picked him up.
Following argument, the juvenile court noted there were at least six other participants in the alleged robbery. The court wondered why at least one of them was not "sitting next to" M. R. and was not called as a witness. The court also wondered why M. R.'s father was not called as a witness. The court asked whether the court was "at liberty to take an adverse inference" based on the jury instruction for a missing witness. Both parties agreed the court could not make such an inference. The court was not persuaded by counsels' arguments, took the issue under submission, and asked counsel to submit briefs on the issue.
The court subsequently agreed the missing witness instruction did not apply. The court then found J. V. to be articulate and credible, and the alibi evidence was too vague and uncertain to overcome his unwavering testimony. The court further found the lineup was not unduly suggestive. Accordingly, the court found the robbery allegation true beyond a reasonable doubt and sustained the petition.
The court adjudged M. R. a ward of the court and committed him to 60 days in juvenile hall, with credit for 60 days. The court further ordered M. R. to serve an additional 54 days on electronic monitoring, with credit for 54 days. Finally, the court placed M. R. on probation and set a hearing for restitution.
We appointed counsel to represent the minor on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) The minor was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from the minor. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to the minor.
DISPOSITION
The dispositional order is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.