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In re N.D.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 2, 2012
D059549 (Cal. Ct. App. Feb. 2, 2012)

Opinion

D059549 Super. Ct. No. J228436

02-02-2012

In re N.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.D., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Reversed and remanded with directions.

In the juvenile delinquency case of N.D., the juvenile court entered true findings of attempted robbery (Pen. Code, §§ 211, 664) with personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1); count 1), attempted theft (§§ 487, subd. (c), 664) with use of a deadly or dangerous weapon (§ 12022, subd. (b)(1); count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 3). The court declared N.D. a ward and detained him with his mother on home supervision for 30 days, followed by placement at home on probation. N.D. appeals, contending: (1) the court erred by imposing the weapon enhancements because there was no evidence he personally used a weapon; (2) the dispositional judgment must be reversed because the People and the court did not assess N.D.'s eligibility for deferred entry of judgment; (3) the attempted robbery must be deemed of the second degree because the court did not determine the degree; (4) the case must be remanded because the court did not determine whether count 3 was a misdemeanor or felony; and (5) the court abused its discretion by admitting inadmissible hearsay evidence of curbside identifications and because that inadmissible evidence was the only evidence connecting N.D. to the crimes of attempted robbery (count 1) and attempted theft (count 2) there was insufficient evidence to support the true findings on counts 1 and 2. The People concede the correctness of the first two contentions and do not address the remaining contentions. We reverse the true findings: on counts 1 and 2 because there was no admissible evidence connecting N.D. to those offenses; and on count 3 because there was no compliance with the procedure for deferred entry of judgment. We remand the case to the juvenile court for further proceedings regarding count 3.

Further statutory references are to the Penal Code unless otherwise specified.

FACTUAL BACKGROUND

On February 21, 2011, around 10:30 or 10:35 p.m., two Black men entered the lobby of a Comfort Inn through the back door. One of the men wore a gray hoodie and the other wore a black sweater. Both men wore hoods completely covering their heads. The hoods left only their eyes, mouths and noses visible.

Each man carried an object wrapped in a cloth. The objects were approximately two feet long and appeared to be guns. One man pointed the object he was carrying at front desk agent Victor Anaya, and the other man pointed his at customer Colleen Kelley. One of the men demanded money.

Anaya said he had to get a key to open the cash drawer. The man pointing the object at Anaya jumped over the counter. Anaya was unable to open the drawer, and the men cursed and threatened to kill him. One of the men said, "We'll be back." The men slammed the back door open and ran out of the lobby heading east. Anaya called the police. Joseph Desio, who had looked into the lobby during these events, also called the police.

Police officers in the parking lot of a nearby Travelodge saw a car approach from the west at a high rate of speed. The car struck the patrol vehicle then stopped. The police arrested the car's occupants, 17-year-old N.D. and two other Black males, Dominique Humphrey and Jessie Mitchell. N.D., the driver, was wearing a red hooded sweatshirt. One of the passengers was wearing a white T-shirt, and the other was wearing a black or dark gray hooded sweatshirt. The car had been reported stolen. There were articles of clothing in the back of the car. In the trunk were tools including hammers, wrenches, screwdrivers and a caulking gun. There were no firearms, but some of the tools could have been used to simulate weapons. The police did not check the tools for fingerprints or DNA.

N.D. testified Dominique gave him and Mitchell a ride. When N.D. realized he had lost his cell phone, Dominique dropped him off at the Comfort Inn so N.D. could use a pay phone. Once at the pay phone, N.D. realized he had no money. He began to walk back to the car and saw Dominique driving away. N.D. flagged down Dominique and jumped in the backseat of the car. Mitchell gave N.D. some money and they drove across the street where N.D. used a pay phone. When N.D. returned to the car, Dominique and Mitchell were in the backseat, so N.D. sat in the driver's seat. Dominique said N.D. could drive. N.D. drove across the parking lot and collided with the patrol car. N.D. did not know the car was stolen, did not intend to rob the Comfort Inn and did not intend to be a getaway driver.

N.D. did not give Dominique's surname. Jacoby or something similar was apparently Mitchell's middle name.

COUNTS 1 AND 2

The only evidence connecting N.D. to the attempted robbery (count 1) and the attempted theft (count 2) at the Comfort Inn was the testimony of a police officer. The officer testified there was a curbside lineup on the night of the crimes. Three suspects participated in the lineup. Kelley identified Mitchell as one of the robbers. Anaya identified Dominique as one of the robbers. N.D.'s trial counsel objected to the police officer's testimony on hearsay and Sixth Amendment grounds. The court overruled the objections.

There was no evidence, admissible or otherwise, that N.D. personally used a weapon. (§ 12022, subd. (b)(1); People v. Santamaria (1994) 8 Cal.4th 903, 918.)
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The police officer's testimony was inadmissible hearsay. (See Evid. Code, § 1238, subd. (c).) The court abused its discretion by admitting the testimony. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Because there was no other evidence connecting N.D. with the attempted robbery and the attempted theft, the true findings on counts 1 and 2 must be reversed. Considering our conclusion, we do not address N.D.'s contention the attempted robbery must be deemed of the second degree.

COUNT 3

The true finding and dispositional judgment on count 3 (unlawful driving or taking of a vehicle) must be reversed because the People did not file the required form regarding N.D.'s eligibility for deferred entry of judgment and the court did not assess N.D.'s eligibility. (Welf. & Inst. Code, § 790 et seq.; Cal. Rules of Court, rule 5.800; In re Luis B. (2006) 142 Cal.App.4th 1117, 1122-1124; Martha C. v. Superior Court (2003) 108 Cal.App.4th 556.) We remand this case to the juvenile court for proceedings in compliance with Welfare and Institutions Code section 790 and California Rules of Court, rule 5.800 as to count 3. The court must also determine whether the offense in count 3 is a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1201, 1203-1209; Veh. Code, § 10851, subd. (a); Welf. & Inst. Code, § 702.)

DISPOSITION

The true findings on all three counts and the dispositional judgment are reversed. The case is remanded to the juvenile court with the following directions. The court shall direct the prosecutor to comply with, and shall itself comply with, the procedures set forth in Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800 as to count 3 only. The court shall determine whether the offense in count 3 is a felony or a misdemeanor. If the juvenile court does not defer entry of judgment, the court shall reinstate the true finding and dispositional judgment on count 3.

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McDONALD, J.
WE CONCUR:

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BENKE, Acting P. J.

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AARON, J.


Summaries of

In re N.D.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 2, 2012
D059549 (Cal. Ct. App. Feb. 2, 2012)
Case details for

In re N.D.

Case Details

Full title:In re N.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 2, 2012

Citations

D059549 (Cal. Ct. App. Feb. 2, 2012)