Opinion
F084212
02-22-2023
In re M.S., a Person Coming Under the Juvenile Court Law. v. M.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County, No. JW143062-00 Wendy L. Avila, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Minor M.S. contends on appeal that the robbery finding against him by the juvenile court must be reversed because there is no substantial evidence on the record to support the identification of minor as a perpetrator of the robbery. We affirm.
PROCEDURAL SUMMARY
On February 7, 2022, the Kern County District Attorney filed a juvenile wardship petition, pursuant to Welfare and Institutions Code section 602, alleging that minor had committed felony robbery (Pen. Code, § 212.5, subd. (c); count 1).
On February 22, 2022, minor denied the allegations. Minor failed to appear at a hearing on April 21, 2021, and a bench warrant was issued.
On March 15, 2022, a contested jurisdictional hearing was held. The petition was sustained on March 25, 2022.
On April 11, 2022, at a dispositional hearing, minor was adjudged a ward of the court and placed on probation. He was ordered to spend 30 days in juvenile hall. The available confinement time was three years, less 66 days of credit for time served. Minor and his parents were ordered to pay restitution of $240 to the victim and a restitution fine of $100. (Welfare &Inst. Code, §§ 730.6, 730.7.)
On April 12, 2022, minor filed a notice of appeal.
FACTS
On February 5, 2022, S.V. was barbequing in the parking lot of his sister's apartment complex facing an alleyway. Sometime between 6:00 p.m. and 7:00 p.m., he saw three men approach him, walking southbound down the alley. It was dark outside, and there were no streetlights or car lights in the alley.
The first man stopped two feet from S.V.'s left side and pointed a gun at him. The second man, who did not have a gun, stood two feet from S.V.'s right side. The third man acted as a lookout in the alley.
The first man, with the gun, asked S.V. whether he "gang banged." When S.V. said he did not, that man ordered him to empty his pockets. S.V. gave him his wallet and phone. All three men then ran northbound up the alley. The entire incident took approximately five or six minutes.
The second man, who stood to S.V.'s right, did not say or do anything during the incident, as he stood a couple of feet away from him. S.V. stated that he did not get a good look at the second man as the men approached him and did not keep his eyes on the second man, as he was watching the first man, who had the gun, because he was scared for his life.
He testified that he did see that the man to his right wore a "burgundy sweatshirt" and "black jeans or sweatpants" during the incident and stated that he described the man's clothing to police that night as a "red hoody" with black sleeves and black pants. S.V. stated that the man wore a blue surgical mask during the incident, and that his nose was slightly covered, but he could see his hairstyle and eyes. He described the man's hair as "pretty long," coming from the top of his head down to his ears, and described him as skinny, "kind of short," and "young," maybe 18 or 19 years old.
After the three men left, S.V. called 911 and his sister spoke to a dispatcher. Delano Police Officer Michael Kraft was dispatched at 7:01 p.m. Kraft testified that S.V. described the man to his right without the gun as wearing "a black hoody with red sleeves and black pants" with a surgical mask on his face, and that he appeared young, without any facial hair on his cheeks. Between approximately 7:30 p.m. and 8:00 p.m., Kraft found S.V.'s phone in the backyard of a nearby home located off of the alley, north of the parking lot where the incident occurred. The phone had no usable fingerprints.
After Kraft left, S.V. spoke with his niece, who lived in his sister's apartment. He told her that the man to his right was skinny, "kind of short," and had long hair. S.V.'s niece showed him a photo of minor on her phone. The picture was a side profile, which appeared to be a social media screenshot. When S.V. saw the photo, he said, "[Y]es, that's him."
S.V. contacted Kraft again at approximately 8:30 p.m., and provided him with minor's name and address, which he obtained from his niece. Minor lived two or three buildings away from S.V.'s sister, just up the alley north of the parking lot where the incident occurred and just north of where S.V.'s phone was found.
After speaking with S.V., Kraft and his partner went to minor's family's apartment between approximately 8:45 p.m. to 9:00 p.m. The officers did not enter the apartment for another 20 or 30 minutes, until minor's brother, P.L., was able to contact their parents to get permission for the officers to conduct a welfare check of the home. After conducting a welfare check, Kraft had minor stand outside the apartment complex.
Kraft retrieved S.V. from his sister's apartment for an infield showup of minor. Kraft admonished S.V. that the person he was about to see may or may not be the perpetrator. When Kraft drove S.V. past minor, S.V. identified minor from the backseat of the patrol car as the perpetrator who stood to his right side during the robbery. S.V. testified that he told the police officers that he was "80 percent" sure minor was the man to his right during the robbery.
Kraft testified that he spoke with minor's father over the phone after minor's arrest and told him the incident occurred at approximately 7:00 p.m. He stated that initially, minor's father told him that minor could not have left the apartment at 7:00 p.m., because minor was with him at that time, but then changed his statement and told Kraft that minor could have left the apartment because he and his wife left the apartment at approximately 6:30 p.m. to 6:40 p.m.
In court, S.V. identified minor as the man who stood to his right, without a gun, during the robbery, stating he was "80 percent" sure it was him.
Defense Case
Minor's Testimony
Minor testified that on the day of the incident, he and his brother, D.S., headed home at approximately 4:30 p.m. Minor's parents were barbequing outside their apartment complex with neighbors when they arrived. Minor's father told minor to go to the store to buy chicken, so he went to a nearby market on his bicycle. Minor stated that he was at the market for less than five minutes, returning home with the chicken around 5:00 p.m. or 5:30 p.m.
He said he ate dinner after returning home, and then his mother told him that their family friend, R.C.M., wanted minor to get money for him from the automatic teller machine (ATM). Minor testified that he went to the nearby ATM at approximately 6:30 p.m. or 7:00 p.m., came back, and gave the money to R.C.M. The ATM was inside a market located in the same building as minor's apartment. He stated that he was at the ATM for approximately 10 to 15 minutes because the ATM did not have enough money for him to withdraw. The store owner had to put money in and reset the machine while he was trying to use it.
Minor testified that upon returning home, he went inside the apartment to play a video game with his brother, D.S. He stated his parents were home the entire evening until they left for the casino at approximately 7:00 p.m. or 7:10 p.m. He stated that he and D.S. did not leave the apartment after his parents left, but that his older brother, P.L., left at approximately 8:30 p.m. or 9:00 p.m., to go to the store.
Minor testified that when police officers came to the apartment between approximately 9:00 p.m. and 10:00 p.m., he was questioned by Kraft, then handcuffed and put in a patrol car and told he was under arrest. He stated that at no point were the handcuffs removed. He testified that, at the time he was handcuffed, he was wearing the same clothes he wore to the ATM. Minor testified that he owned black sweats or pants.
Minor stated that he does not know S.V. He testified that he did know S.V.'s sister and her daughter, S.V.'s niece, who lived near his family's apartment. Minor stated that S.V.'s sister had cussed at him and tried to run him over on two occasions prior to the incident. He testified that it would take him "a minute or two" to get from his apartment to where the robbery occurred via the alley.
D.S.'s Testimony
Minor's brother, D.S., stated he was with minor the entire day of the incident. He stated they arrived home at approximately 5:00 p.m. or 6:00 p.m., when their family and family's friend, R.C.M., were outside their apartment barbequing.
He testified that he and minor went inside to play a video game during the barbeque, and minor left the house sometime between approximately 6:00 p.m. and 7:00 p.m., to withdraw money from the nearby ATM for R.C.M. D.S. testified that he and his parents were home when minor returned five minutes later from the ATM.
When asked whether minor ever changed clothing that day, D.S. stated he did not remember seeing minor change.
He stated that minor was still at home when their parents left the apartment around 6:00 p.m. or 7:00 p.m., and approximately 10 or 20 minutes later, their older brother, P.L., left to go to the store for groceries. D.S. testified that he and minor were playing a video game when the police came to the door, about 15 to 20 minutes after his parents left. P.L., was still at the store when the officers arrived, and the police did not enter the home until P.L. returned approximately 10 or 15 minutes later.
R.C.M.'s Testimony
R.C.M. testified that minor was at minor's family's apartment while they were barbequing, and that he gave minor his ATM card to withdraw $140, because he and minor's parents were planning to go to the casino after they finished the barbeque. He asked minor to withdraw the money because his legs hurt when he walked. He said that at approximately 6:40 p.m., minor went to the ATM, located two minutes from the apartment, and that he saw him inside the apartment again before they left for the casino at approximately 7:00 p.m. He testified that minor was acting "[f]ine" that day, and that "[e]verything was normal." He stated he and minor's parents left the casino when the police contacted them, and they were back at the apartment at approximately 9:30 p.m.
Minor's Father's Testimony
Minor's father, M.M., stated that he did not see anyone run down the alley while he was barbequing outside his family's apartment that day. He stated there was graffiti and trash in the alley, and that "[i]t's a [highly transited] alley. There's a lot of people that walk around that area."
Before he, his wife, and R.C.M. went to the casino, R.C.M. sent minor to the nearby ATM. M.M. stated minor was there for 15 to 20 minutes. He stated, "He was at the store for a while. I don't know if something happened with the ATM, but he'd been there for a little while."
He stated that it was 6:35 p.m. or 6:38 p.m., when he, his wife, and R.C.M. decided to leave for the casino. He testified that he called his older son, P.L., at 6:38 p.m., to ask him to return to the apartment to watch minor and D.S. for the evening. He stated that minor was already at the store with the ATM when he called P.L. at 6:38 p.m. He testified that he checked the time he called P.L. on his cell phone's call log. P.L. returned to the apartment approximately 15 minutes after he called him.
He stated that minor had been at the apartment the entire evening, except to buy the chicken and to go to the ATM for R.C.M. He stated that minor was in the apartment when they left for the casino at 7:00 p.m. or 7:05 p.m. He stated that it takes an hour to get to the casino from the apartment, and that they had already been there for some time when he learned that minor had been arrested at approximately 9:00 p.m.
He testified that minor acted normally the day of the incident, stating, "Like any kid, normal kid that plays outside of his house, that goes outside and talks to his family and the neighbors. He's a very calm young man."
Minor's Mother's Testimony
Minor's mother, M.L., testified that she saw minor and D.S. arrive home at approximately 4:30 p.m. or 5:00 p.m. She stated that minor did not leave home again until M.M. told minor to buy chicken at the market approximately a seven-minute walk from their apartment. She stated minor went to the market at approximately 5:00 p.m. or 5:30 p.m., and returned five minutes later because he went on his bicycle. She stated that when minor returned home with the chicken, he and D.S. went inside the apartment to play video games.
She testified that he was wearing a "purple sweater on with a neck" and "shorts." She testified that minor did not leave the house again until R.C.M. asked minor to withdraw money from the ATM nearby, which minor did after he finished eating. She stated he returned to the apartment from the ATM in approximately seven minutes.
She testified that at 6:46 p.m., she called her oldest son, P.L., and asked him to return home. He arrived five or six minutes later. She stated that minor was inside when she, his father, and R.C.M. left for the casino at 7:00 p.m. or 7:10 p.m., approximately a half-hour after minor had returned from the ATM.
P.L.'s Testimony
Minor's older brother, P.L., stated that he was out of the house when his mom contacted him at "6:50, 6:48 I think" and he told her he would come home. He stated he arrived home at approximately 7:00 p.m. or 7:10 p.m. He stated his parents left for the casino approximately five or 10 minutes after he arrived at the apartment.
He testified he was with minor at home until approximately 9:00 p.m., and that he never saw minor change clothes during that time. He did not remember what minor was wearing. P.L. stated that at approximately 8:50 p.m. or 9:00 p.m., he went to the store, and that five minutes after he left, his brother, D.S., called to tell him the police were at the apartment. He stated that when he returned, minor was outside the apartment in a police car. He testified the police asked him to get minor warm clothing, so he gave the police minor's sweatshirt, sweats, socks and shoes.
ATM Surveillance Video Recording
The surveillance video recording from the market where the ATM was located shows minor clean shaven, without a face mask, wearing red shorts and a "maroon" or dark red sweatshirt without a hood, over a black shirt, visible hanging below the bottom of the sweatshirt. He appears slim, with hair that hangs from the top of his head down to his ears. The time stamp on the video is 6:14 p.m. when he enters the market and 6:23 p.m. when he exits.
Minor's Clothing
When minor was brought to juvenile hall after his arrest, he was wearing a "maroon" sweatshirt without a hood and red shorts; the police also brought a black, hooded sweatshirt, and gray sweatpants that minor's brother, P.L., had given them when they told P.L. minor would need warm clothing.
When shown the clothing that minor had with him when he arrived at juvenile hall, S.V. testified that the black sweatshirt with a hood was not worn by anyone involved in the incident, and that, while the "burgundy" or "dark wine color red" sweatshirt without a hood was a similar color as the one he described the perpetrator wearing, the suspect's sweatshirt had a hood. He stated that the gray sweatpants were not worn by the suspect, as the suspect's sweatpants were solid black.
DISCUSSION
Minor contends the juvenile court abused its discretion because there was not substantial evidence on the record to support the identification of minor as the perpetrator of the robbery. We disagree.
A. Background
During minor's contested jurisdictional hearing, the juvenile court stated that, "[b]ased on the totality of circumstances, this Court finds ... the allegation in Count 1 [robbery] true."
The court stated, "Critical in determining [the issue of identity of the perpetrator] is for this court to assess the credibility of the witnesses' conflicting testimonies. ... [I]t is instructive to look at CALCRIM 226 which instructs on how witnesses' credibility can be assessed. It instructs that when evaluating a witness's testimony, one can consider anything that reasonably tends to prove or disprove the truth or accuracy of the testimony.
Jury Instruction CALCRIM 226 adopts the requirements of Evidence Code section 780, and directs a factfinder to consider the witness's credibility, stating: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. "You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: "• How well could the witness see, hear, or otherwise perceive the things about which the witness testified? "• How well was the witness able to remember and describe what happened? "• What was the witness's behavior while testifying? "• Did the witness understand the questions and answer them directly? "• Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? "• What was the witness's attitude about the case or about testifying? "• Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? "• How reasonable is the testimony when you consider all the other evidence in the case? "• [Did other evidence prove or disprove any fact about which the witness testified?] "• [Did the witness admit to being untruthful?] "• [What is the witness's character for truthfulness?] "• [Has the witness been convicted of a felony?] "• [Has the witness engaged in [other] conduct that reflects on his or her believability?] "• [Was the witness promised immunity or leniency in exchange for his or her testimony?] "Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. "[If the evidence establishes that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.] "[If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject.] "[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]"
"Some relevant factors to be considered relevant to this case include how well could the witness see, hear or otherwise perceive things about which the witness testified? How well was the witness able to remember to describe what happened? What was the witness's behavior while testifying? Was the witness's testimony influenced by such factors as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided? Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? How reasonable is the testimony when you consider all other evidence in the case?"
The court then stated, "To begin the analysis in this case, the Court found the testimony of the victim [S.V.] extremely credible. His demeanor was that of someone who was honestly recalling events and answering questions from counsel to the best of his ability. The victim identified [minor] as the person who was two feet to his right side. In fact, the victim not only identified [minor] as the perpetrator of the crime here in court, but identified him a total of three times.
"The first identification was on the date of the incident after he spoke with the police. He testified that his sister showed him a photo of [minor] on social media after he had given her a description of the suspects involved. He identified [minor] on social media and as the subject on his right side. He recontacted law enforcement to inform them.
"The second identification took place also the day of the incident when the victim pointed out [minor] as a part of an infield showup and after having received an admonition by law enforcement.
"The third time, the victim identified [minor] here in court while testifying. I would note there was no hesitancy in the victim's identification, and this Court finds his identification on all three occasions credible. Of significance regarding the identification of [minor] by the victim, is that the victim specifically describes the person on the right, the suspect for which he has identified [minor], as clean shaven with long hair. When asked to clarify what he meant by long hair, the victim says, quote, it was hair that was coming from the top of his head going down to his ears, end quote.
"This description perfectly matches the way [minor]'s hair is styled in the store video entered as [Exhibit C]. [Minor] is wearing a burgundy sweatshirt and his hair is long and comes down from the top of his head to his ears. It's a distinct style. So this fact lends credibility to the victim's identification of [minor].
"Further lending credibility to the victim's identification are the clothes seized by juvenile hall that [minor] was wearing the night of the incident. Although the victim did testify each item was not something that he recognized, it is significant that the description given to law enforcement of the night of the incident was that [minor] was wearing a black hoody with burgundy sleeves. The seized clothes contain a black hoody and a burgundy sweatshirt.
"If [minor] put the black hoody over the burgundy sweatshirt, which I will note is what he was wearing in the video at the store, all he would need to do is pull the sleeves up and that would match the description given by the victim. It is understandable that the victim's memory may not be as clear on this topic because he testified in court that he was primarily looking at the party to his left who was the individual holding the firearm on him. To be focused on the object that you believe might kill you is a reasonable and natural reaction.
"Further, the victim testified as to having pinged his phone to determine the location. The first ping of the phone was at or near the location of [minor]'s residence and then ultimately the phone was found in a backyard of a residence which was between the location where the victim was cooking and [minor]'s residence.
"Lastly, the direction the victim testified in which the suspects ran is consistent with the location of [minor]'s apartment."
As to the defense witnesses' testimony, the court stated, "The defense called [minor]'s mother, father, two brothers and a family friend. The summary of the testimony of these witnesses is essentially they saw [minor] present at a family barbecue and therefore he could not be the one who committed this crime."
"To begin with, the family and close friends have an obvious motive to testify favorably to [minor]. It is clear they love him and do not want him to get into any kind of trouble. Second, unlike the victim who is clearly focused on a robbery where he was held at gunpoint on the night of the incident to the contrary, the defense witnesses had no reason to pay attention to the comings and goings of [minor].
"In fact, piecing together the testimony of the witnesses, it appears that the parents and family friends were all well into the cooking process by the time [minor] even arrives home. The mother testified that the father already had the fire going. Further, the testimony was that the barbecue took place across the alley from [minor]'s residence, and the parents and the family friends were making plans to go to the casino.
"The reasonable interpretation of this set of facts reflects witnesses who were focused on eating and making plans, not on the whereabouts of [minor]. Additionally, even assuming everything the defense witnesses said was true, which I would note would be impossible given the inconsistencies in times and events between the witnesses, but for argument's sake, [minor] still had opportunity to commit the robbery.
"The victim testified the total time of the robbery took only five to six minutes. The testimony of the witnesses has [minor] leaving home on at least two occasions; first, to get chicken at the market; and second, to the store to obtain money for [R.C.M.]. This gives [minor] a window when he was away from the family and would have given him plenty of time to commit the robbery.
"The store, according to the testimony, is right next door and the father estimates [minor] was gone for 15 to 20 minutes. The defense argued that if [minor] wanted money, he would have taken it out of the ATM with [R.C.M.]'s ATM card. This argument is not credible as [R.C.M.] is a family friend and would be able to easily identify [minor] taking more money than what he was authorized to take.
"Lastly, the defense, through the testimony of [minor] himself, identified a potential motive for the suspects to target the location where the sister of [S.V.] lived, the location of the robbery. [Minor] testified that he has not had a good experience with the sister of the victim and that she has, in fact, tried to run him over twice. Although this is a less significant factor in the Court's analysis, it does nevertheless provide a motive for targeting her residence. The victim may have been targeted due to the location he was cooking."
B. Law
We review the minor's contentions using the same standard of review that applies in adult criminal cases. (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
"Specifically, we determine whether substantial evidence-'evidence that is reasonable, credible, and of solid value'-supports the juvenile court's findings." (In re I.A. (2020) 48 Cal.App.5th 767, 778 (I.A.).)" 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]'" (People v. Clark (2011) 52 Cal.4th 856, 943.)
"We view the evidence 'in the light most favorable to the prosecution and presume in support of the [findings] the existence of every fact the [court] could reasonably have deduced from the evidence.' [Citation.] We 'accept [all] logical inferences that the [court] might have drawn from the ... evidence' [citation], but reject inferences' "based on suspicion alone or on imagination, speculation, supposition, surmise, conjecture, or guess work." '" (I.A., supra, 48 Cal.App.5th at p. 778.)
When the circumstances reasonably support the court's findings, the reviewing court's opinion that the circumstances might also reasonably point to a contrary finding does not warrant reversal. (In re George T. (2004) 33 Cal.4th 620, 631.) "[O]n appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment." (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.) "We will reverse only if' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the [court's findings].'" (I.A., supra, 48 Cal.App.5th at p. 778.)
A conviction based on identification is upheld if supported by substantial evidence. (People v. Cuevas (1995) 12 Cal.4th 252, 257.)
The testimony of a single witness, if believed by the factfinder, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
"[T]he court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
"(a) His demeanor while testifying and the manner in which he testifies.
"(b) The character of his testimony.
"(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
"(d) The extent of his opportunity to perceive any matter about which he testifies.
"(e) His character for honesty or veracity or their opposites.
"(f) The existence or nonexistence of a bias, interest, or other motive.
"(g) A statement previously made by him that is consistent with his testimony at the hearing.
"(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
"(i) The existence or nonexistence of any fact testified to by him.
"(j) His attitude toward the action in which he testifies or toward the giving of testimony.
"(k) His admission of untruthfulness." (Evid. Code, § 780.)
C. Analysis
Minor contends there is insufficient evidence supporting his conviction because (1) S.V.'s testimony identifying minor as the perpetrator was physically impossible, and (2) the juvenile court's inferences were unreasonable. We disagree.
1. S.V.'s Testimony
S.V.'s testimony identifying minor as the suspect standing to his right side during the robbery was not physically impossible. Minor argues that this was a case of mistaken identity because it was impossible for him to be in two places at once, and that he could not be the perpetrator of the robbery because of discrepancies between the clothing S.V. stated the perpetrator was wearing and what minor was wearing in the ATM surveillance video recording. However, the evidence does not definitively show minor was somewhere else during the entire period of 6:00 p.m. to 7:00 p.m., nor does the discrepancy between S.V.'s description of the suspect's clothing and what minor was wearing in the ATM surveillance video recording render his participation in the robbery physically impossible.
First, the evidence does not show minor was somewhere else during the time of the robbery. S.V. testified that the robbery occurred sometime between 6:00 p.m. and 7:00 p.m., and took only five to six minutes, but he did not give an exact time during that period that it occurred. The location of the robbery was only a one to two minutes' walk from minor's apartment. The ATM was also located very close, in the same building as minor's apartment, and the time stamp on the ATM surveillance video recording shows minor was only at the ATM between 6:14 p.m. and 6:23 p.m., for a total of nine minutes. Accordingly, the ATM surveillance video only makes minor's participation in the robbery physically impossible for the nine minutes between 6:14 p.m. and 6:23 p.m., but not physically impossible during the rest of the 6:00 p.m. to 7:00 p.m., time period during which the robbery could have occurred.
Further, the testimonies of the defense witnesses, all close relations of minor, do not render S.V.'s identification of minor as the suspect physically impossible. All of minor's family and friends testified that minor was at home the evening of the incident, except when he left to buy chicken from a nearby market and when he went to the nearby ATM. However, as the court stated, all the witnesses gave varying and conflicting estimates of when minor left and returned to the apartment for those errands. His parents also gave varying times in their statements to the police and during their testimony about when they left the apartment to go to the casino.
As the factfinder, the juvenile court was tasked with assessing the witnesses' credibility. (Evid. Code, § 780.) As the court stated, while it found S.V. to be "very credible," it considered the defense witnesses' potential for bias according to the factors outlined in Evidence Code section 780 and CALCRIM 226 and found them to be less credible than S.V., and, accordingly, believed S.V.'s testimony over theirs. The court also noted that the times the defense witnesses estimated minor came and went from the apartment throughout the evening varied and that their attention, according to their own testimony, was on the barbeque, rather than minor's movement or clothing, that evening. The court further noted that even if the testimonies of the defense witnesses were true that minor only left the apartment twice that evening, to buy chicken and go to the ATM, this still would not render minor's participation in the robbery physically impossible given the proximity of the location of the robbery, minor's apartment, S.V., the nearby market and the ATM, considering the brief time the robbery took to complete.
Second, the discrepancies between S.V.'s description of the suspect's clothing and what minor was wearing at the ATM and at his arrest do not make it physically impossible that minor participated in the robbery. S.V. testified during the hearing that the perpetrator wore a "burgundy sweatshirt" and "black jeans or sweatpants," and when he made his statement to police immediately following the incident, he described the clothing as a red hoody with black sleeves and black pants. Kraft testified that S.V. described the suspect as wearing a black hoody with red sleeves. Minor was shown on the ATM surveillance video recording from that evening wearing a hood-less "maroon" sweatshirt and red shorts, with a black shirt showing beneath the maroon sweatshirt. The "maroon" sweatshirt and black shirt showing from beneath it are similar to S.V.'s description of the suspect's outfit as a "burgundy" hoody. More importantly, while the clothing minor was wearing in the ATM surveillance video recording and at the time of his arrest do not match the clothing that S.V. described the perpetrator as wearing, the robbery occurred sometime between 6:00 p.m. and 7:00 p.m., and minor was only recorded on the ATM surveillance video for nine minutes during that period, between 6:14 p.m. and 6:23 p.m. As there is no evidence that minor did not change clothing at any other time during the hour of 6:00 p.m. to 7:00 p.m., the ATM surveillance video recording him wearing different clothes from those described by S.V. does not render his participation in the robbery physically impossible.
2. The Juvenile Court's Inferences
Here, the juvenile court's inferences based on the evidence were reasonable.
Minor first argues that the court's inference that S.V. could identify minor based on his "distinct" hairstyle was unreasonable because minor's hairstyle in the ATM surveillance video is "ordinary." However, S.V. described the suspect's hair as coming from the top of his head down to his ears, which, as the court states, is the same as minor's hair appeared in the ATM surveillance video. Accordingly, it was not unreasonable for the court to infer that the hairstyle was "distinct" enough for it to be an identifying characteristic of minor.
Minor next contends it was unreasonable for the court to infer that minor could have layered the black hoody and maroon hoody and pushed up the sleeves of the top layer to achieve the look described by S.V. as a "burgundy" hoody with black sleeves. However, there is the evidence that minor owned both a black and maroon sweatshirt, and further, minor was shown in the ATM surveillance video wearing the burgundy sweatshirt that night over a black shirt that hung out from underneath it. Accordingly, the court's inference that he could have put his black sweatshirt over the maroon sweatshirt and pushed up the sleeves to match Kraft's testimony of S.V.'s description is reasonable.
Next, as the court stated, it based its inference that he participated in the robbery between 6:00 p.m. and 7:00 p.m., on the evidence that the locations where minor lived, where the robbery occurred, where S.V.'s phone was found, and where he was recorded on the ATM surveillance video, were all within a one- to two-minute walk of each other. Minor argues that living near the scene of the robbery does not make him more likely to commit a crime. While this is true, being a local resident also does not make the court's inference that minor was able to participate in the robbery a one- to two-minutes' walk from his house unreasonable.
Last, the court's inference that the poor relationship between S.V.'s sister and minor could have contributed to a motive for minor to target the location of his sister's apartment as a place to commit robbery was not unreasonable, as minor stated he had prior altercations with S.V.'s sister and knew where she lived.
Reviewing the whole record in the light most favorable to the judgment below, it does not appear that "upon no hypothesis whatever is there sufficient substantial evidence to support" the court's findings, although the circumstances might also reasonably point to a contrary finding. (I.A., supra, 48 Cal.App.5th at p. 778.) Accordingly, as we must resolve all conflicts in the evidence and the juvenile court's attendant reasonable inferences in favor of the judgment, we affirm.
DISPOSITION
The disposition order is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and DeSantos, J.