Opinion
A151304
03-08-2018
In re R.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17JW0349)
A juvenile court found appellant unlawfully drove or took a vehicle without the owner's consent. Appellant contends (1) the court's finding is not supported by substantial evidence, (2) the court violated double jeopardy protections by reversing itself after finding the evidence insufficient to support the allegations of the petition, and (3) the court erred by failing to rule on appellant's motion to reduce the felony to a misdemeanor and recognize its discretion to designate the wobbler offense as a misdemeanor. We conclude the matter must be remanded for the juvenile court to exercise its discretion to designate the offense as a misdemeanor or felony, and if appropriate, consider appellant's motion to reduce the felony to a misdemeanor. In all other respects, we affirm the judgment.
I. BACKGROUND
A. Factual Background
On March 29, 2017, around 2:00 a.m., security cameras at a rental car lot in Santa Clara, California, captured video of a blue Infiniti sports utility vehicle (SUV) being taken from the lot.
The following day, C.P. drove into a gas station on Mission Street in San Francisco. As he pulled into the gas station, he saw about five young African-American or mixed-race males fumbling with the gas tank on a blue SUV. C.P. noticed the young men did not seem to be familiar with the vehicle and appeared to be trying to figure out both how to open the gas tank and who was going to drive the car. C.P. called 911 to report the suspicious activity.
San Francisco police officers responded to the 911 call and arrived at the gas station to find the SUV still there. As they drove up to the gas station, one of the officers saw three people get out of the vehicle and flee on foot. Officer Oliver Calupad saw appellant exit the driver's side of the SUV and run up the street. Calupad chased appellant. After he caught him, appellant told Calupad he was the only one in the car. Calupad later searched the SUV and found a cell phone on the driver's seat that belonged to appellant. B. Procedural Background
On April 3, 2017, the San Francisco District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging appellant came within the meaning of that statute for driving or taking a vehicle without the owner's consent, a felony (Veh. Code, § 10851, subd. (a)) and resisting arrest, a misdemeanor (Pen. Code, § 148, subd. (a)(1)).
At the contested jurisdictional hearing, the juvenile court initially stated the evidence did not prove beyond a reasonable doubt appellant was driving the vehicle, but thereafter reversed itself and found the allegations of the petition true. Appellant made an oral motion pursuant to Penal Code section 17, subdivision (b) to have his Vehicle Code section 10851, subdivision (a) charge reduced to a misdemeanor. The juvenile court denied the motion, stating, "I think the Court in San Mateo needs to read the probation officer's report and make a decision." The court then ordered the matter transferred to San Mateo County.
At the dispositional hearing in San Mateo County, counsel for appellant asked the court to "reduce the felony that was sustained in San Francisco to a misdemeanor." The juvenile court denied the request because it "didn't hear the facts of the case" and concluded, "That would be up to the judge in San Francisco, since I was not the trial judge." Appellant was ordered to serve 90 days in juvenile hall and ordered placed on probation on release.
II. DISCUSSION
A. Substantial Evidence
Vehicle Code section 10851, subdivision (a) prohibits the unlawful taking or driving of a vehicle with the intent to deprive the owner of possession. A violation is shown "either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding)." (People v. Allen (1999) 21 Cal.4th 846, 851.) Appellant contends insufficient evidence supports the auto theft adjudication in this case because there was no evidence appellant took the vehicle, and insufficient evidence he drove the vehicle or aided another in doing so with the intent of depriving the owner of its use.
We review the juvenile court's finding appellant violated Vehicle Code section 10851, subdivision (a) for substantial evidence, which requires us to " ' "review[] the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' [Citations.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (In re George T. (2004) 33 Cal.4th 620, 630-631.)
Substantial evidence supports a finding appellant drove the car after it was stolen from the rental car lot. A surveillance video from the gas station admitted in evidence shows a car matching the description of the stolen Infiniti drive into the gas station. A short time later, an individual emerges from the driver's side of the vehicle wearing the same dark blue hooded sweatshirt, blue sweatpants, and black shoes appellant was wearing when arrested. The sweatshirt is distinctive because of its color and the presence of a white logo in the upper left corner of the sweatshirt, which is visible both on the video and in a photograph of appellant taken at the crime scene. The video shows this person walk around to the other side of the car and back to the driver's side several times, eventually re-entering the vehicle through the driver's door. Officer Calupad testified as the police approached the gas station, appellant exited from the driver's side of the vehicle and fled on foot. Moreover, police found appellant's phone on the driver's seat of the vehicle, suggesting he had been seated there. Thus, there was substantial evidence to support a finding appellant drove the car. B. Double Jeopardy
Because we find substantial evidence supports a finding appellant drove the vehicle, we find it unnecessary to consider the Attorney General's alternative argument sufficient evidence supported an aider and abettor theory of liability.
Appellant next contends the trial court violated the constitutional prohibition against double jeopardy when it "reversed itself" after first finding the prosecution failed to prove beyond a reasonable doubt that appellant committed auto theft. His argument is premised on the following facts from the contested jurisdictional hearing.
After the presentation of evidence and arguments, the juvenile court stated: "The Court is of the opinion that although the evidence is that some—there is some evidence, the Court does not believe it rises to the level of beyond a reasonable doubt that the defendant—that the minor was driving the vehicle, so the Court will find that—will find that the allegation which the Court on its own motion will add as an alternative—as the alternative to a [Vehicle Code section] 10851, will find a violation of Section 496 of the Penal Code, a felony." Appellant's counsel then objected, noting the court could not add a charge to the petition. After a brief discussion with counsel, the court took a recess for approximately 20 minutes. On its return, the court stated on the record:
"And the Court made a record of a finding under Penal Code Section 496, and the reason the Court made that ruling was not because the evidence did not show that the defendant—that the minor had committed a 496; it was because the Court had a discussion with counsel prior to the start of the jurisdictional hearing, at which time it was pointed out that a 496 would be preferable because it would not affect the minor's driving license or obtaining a driver's license. And the Court was of the opinion that—given the minor's history, that it was appropriate that he be given the opportunity to get his driver's license, given the nature of the offense and his relative lack of a prior record.
"The Court at this time—it was brought to my attention the case of [In re D.W. (2015) 236 Cal.App.4th 313], which seems to indicate that the Court was not able to make a finding based on a non-alleged offense.
"And the Court at this time indicates that it's going to reverse itself, and because it was attempting to give a break to the minor, and make a finding that the offenses as alleged have occurred, and the Court finds proof beyond a reasonable doubt that the violations occurred." The court found appellant came within the provisions of Welfare and Institutions Code section 602 and ordered the matter referred to San Mateo County Superior Court for disposition.
Under the Fifth Amendment of the United States Constitution, no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The constitutional bar to double jeopardy applies in juvenile proceedings. (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375.) As with an acquittal in an adult criminal proceeding, once jeopardy has attached and a juvenile court has made an effective order of dismissal based on insufficiency of the evidence, the minor may not be subject to further hearing on the same act and offense. (Id. at pp. 375-378; see In re Anthony H. (1982) 138 Cal.App.3d 159, 165 (Anthony H.).)
We find double jeopardy was not violated in this case, however, because the record reflects the juvenile court's statement was a preliminary finding that never became final. (Anthony H., supra, 138 Cal.App.3d at pp. 165-166; In re Stephen P. (1983) 145 Cal.App.3d 123, 133-135 (Stephen P.), disapproved on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 275, fn. 5.) Under Welfare and Institutions Code section 702, "[a]fter hearing the evidence [at a jurisdictional hearing], the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Section . . . 602. If it finds that the minor is not such a person, it shall order that the petition be dismissed . . . . If the court finds that the minor is such a person, it shall make and enter its findings and order accordingly." (Italics added.) Here, the juvenile court did not enter its initial finding regarding the insufficiency of the evidence in the minutes, and the order entered after the hearing concludes appellant comes within the provisions of Welfare and Institutions Code section 602. Because the juvenile court's initial statement failed to comply with the statutory requirements for jurisdictional findings in a delinquency proceeding, it was a tentative ruling the court could reconsider. (Anthony H., at pp. 165-166.)
Anthony H. and Stephen P. are instructive. In Anthony H., shortly after the juvenile court announced it would grant the minor's motion to dismiss a robbery count, it realized its ruling may have been procedurally and substantively erroneous. (Anthony H., supra, 138 Cal.App.3d at pp. 162-163, 166.) The juvenile court set aside its ruling on the minor's motion to dismiss, and later reinstated the robbery count, finding the allegation true. The appellate court concluded the juvenile court's initial minute order inaccurately stating the court had granted the motion to dismiss never became effective because it was superseded by a contrary order entered at the same time. Because there was no effective order dismissing the robbery count, the minor was only placed in jeopardy once. (Id. at p. 165.) Further, the minor's constitutional rights were not violated because he "was subjected to only one proceeding. The state had presented its case and was not given an opportunity to reopen its case or otherwise supply missing evidence necessary to make a prima facie case. The jurisdictional hearing was before only one judge sitting as factfinder, and [the minor] was not subjected to the embarrassment, expense, or ordeal of a second trial." (Id. at p. 166.)
The facts of Stephen P., supra, 145 Cal.App.3d 123 are even closer to the facts of this case. After the conclusion of the adjudication hearing on a supplemental petition, the juvenile court found allegations of an arson count had not been sustained. (Id. at p. 133.) When the prosecution raised further arguments regarding the law and evidence, the court read the pertinent code sections, stated it had been mistaken about the law and intended to reverse its ruling, and took the matter under submission. After a further hearing and argument, the court sustained the allegations. (Id. at pp. 133-134.) Relying on Anthony H., the appellate court noted the trial court made its determination to change its ruling "before entry of the finding in the minutes." (Stephen P., at p. 134.) As no disposition was indicated at the time of the juvenile court's initial ruling and the minor was subjected to only one proceeding, the court found no violation of the minor's constitutional right not to be placed in double jeopardy. (Id. at pp. 134-135.)
We find the circumstances of this case analogous to Anthony H. and Stephen P., and agree with the holdings in those cases. While the juvenile court initially stated the evidence did not "rise[] to the level of beyond a reasonable doubt that the . . . minor was driving the vehicle," it almost immediately reconsidered that finding once defense counsel objected to the court adding a Penal Code section 496 allegation on its own motion. The juvenile court never entered a finding in the minutes that the evidence was insufficient or the Vehicle Code section 10851 allegation was not true, nor did it enter an order dismissing the count. Furthermore, the juvenile court changed its ruling following a brief recess during which it reevaluated evidence that had already been presented. Appellant was subjected to only one proceeding, the matter was not reopened or continued for further presentation of evidence, and the hearing took place before only one judge sitting as fact finder. Under these circumstances, we conclude the juvenile court's actions did not subject appellant to double jeopardy. C. Nature of the Vehicle Code Section 10851 Adjudication as Felony or Misdemeanor
We acknowledge that had the juvenile court's initial finding become effective, it could not reverse itself simply because the decision was factually or legally erroneous. (Smith v. Massachusetts (2005) 543 U.S. 462, 473 [double jeopardy will attach to an acquittal that is patently wrong in law]; People v. Eroshevich (2014) 60 Cal.4th 583, 588-589 [double jeopardy prevents retrial of acquittal based on egregiously erroneous foundation].)
Appellant raises two additional issues on appeal concerning his auto theft adjudication. First, he contends the juvenile court abused its discretion by twice declining to rule on his requests to reduce the felony auto theft charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b) (hereafter section 17(b)) and asks us to remand with instructions to the court to rule on his motions. Second, he argues the juvenile court erred by failing to recognize and exercise its discretion to designate the wobbler as felony or a misdemeanor under Welfare and Institutions Code section 702 (hereafter section 702).
Section 17(b) provides: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. [¶] (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. [¶] (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. [¶] (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint."
We decline appellant's suggestion, raised for the first time in his reply brief, that we remand with instructions to the juvenile court to impose a misdemeanor disposition as to the auto theft adjudication because the record is sufficient to allow review of the trial court's exercise of discretion. (See In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693 [court will not consider arguments raised for first time in reply brief].) In any event, this claim is apparently inconsistent with appellant's argument in his opening brief that the juvenile court failed to recognize and exercise its discretion to designate the offense a felony or misdemeanor under section 702. --------
As to the latter contention, appellant is correct that the juvenile court was required to declare whether the auto theft violation was a misdemeanor or felony. (§ 702; Cal. Rules of Court, rule 5.780(e)(5).) Vehicle Code section 10851, subdivision (a) is a "wobbler" offense. Under section 702, "[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." This requirement "serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under [section 702]." (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) Where the juvenile court does not make an express declaration, the matter must be remanded unless the record shows the juvenile court was aware of and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. (Id at p. 1209.)
In this case, neither the reporter's transcripts from the jurisdictional nor dispositional hearings contain a declaration by the juvenile court designating appellant's offense as a felony or misdemeanor. Nor is it clear from the record that the court understood and exercised its discretion under section 702. Although the offense was alleged as felony, and the minute order states it was sustained "as a felony," these facts cannot substitute for an express declaration by the juvenile court. (In re Manzy W., supra, 14 Cal.4th at p. 1208.) Moreover, while appellant twice requested reduction of the felony to a misdemeanor under section 17(b), the juvenile court never ruled on the merits of those requests. The Attorney General concedes the record does not disclose whether the juvenile court recognized or exercised its discretion, and the matter must be remanded. Under these circumstances, we remand for the juvenile court to expressly declare whether the Vehicle Code section 10851, subdivision (a) adjudication is a felony or misdemeanor.
We next consider appellant's contention the matter also should be remanded for the juvenile court to rule on his section 17(b) motion. Courts have broad authority in ruling on motions under section 17(b) to reduce a crime to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; see In re E.G. (2016) 6 Cal.App.5th 871, 883-884 [holding Pen. Code, § 17, subd. (b)(3) applies in juvenile proceedings].) In exercising this discretion, the court should examine the nature and circumstances of the offense, the defendant's attitude toward the offense, the defendant's behavior and demeanor in court, the defendant's criminal history, and general sentencing objectives. (Alvarez, at pp. 978-979.)
As discussed above, the juvenile court never addressed appellant's section 17(b) motions on the merits. However, because we have already determined the matter must be remanded for the juvenile court to declare whether the offense is a misdemeanor or felony under section 702, a decision on the section 17(b) motion may or may not be necessary. If on remand the juvenile court declares the auto theft offense a misdemeanor under section 702, appellant's section 17(b) motion will be moot. If, on the other hand, the court determines the offense is a felony, appellant will be entitled to a hearing and decision on the merits of his section 17(b) motion. Accordingly, we remand for the juvenile court to declare the nature of the Vehicle Code section 10851 offense as a felony or misdemeanor, and if appropriate, resolve appellant's section 17(b) motion on the merits. In doing so, we express no opinion as to how the juvenile court should exercise its discretion in the further proceedings.
III. DISPOSITION
The matter is remanded for the juvenile court to exercise its discretion, pursuant to section 702, and expressly declare whether the Vehicle Code section 10851 violation is a felony or misdemeanor. If the court determines the violation is a felony under section 702, it shall hold a hearing and consider appellant's section 17(b) motion on the merits. The court shall recalculate the maximum period of confinement as necessary in accordance with its determinations. (Welf. & Inst. Code, § 726, subd. (d).) In all other respects, the jurisdictional and dispositional orders are affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.