In re A.C.

 

 

 

 

 

 

 

 

 

Filed 9/6/13  In re A.C. CA2/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re A.C., a Person Coming Under the Juvenile Court Law. _____________________________ THE PEOPLE,               Plaintiff and Respondent,               v.   A.C.,               Defendant and Appellant.

B240082         (Los Angeles County       Super. Ct. No. PJ47578)

 

 

 

            APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Benjamin Campos, Juvenile Court Referee.  Modified and, as so modified, affirmed.

            Tonja R. Torres, under appointment
by the Court of Appeal, for Defendant and Appellant.

            Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General,  Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

 

_________________________

 

 

By two petitions filed under Welfare and Institutions Code section 602,
it was alleged that appellant A.C. had committed possession of marijuana for
sale and vandalism with damage exceeding $400. 
(Health & Saf. Code, § 11350; Pen. Code, § 594,
subd. (a).)href="#_ftn1" name="_ftnref1"
title="">[1]  Following a contested jurisdictional hearing,
the juvenile court found the allegations true, sustained the petitions,
declared A.C. a ward of the court, and ordered him home on probation.

The judgment is affirmed
as modified.

>BACKGROUND

            Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

>STATEMENT OF FACTShref="#_ftn2" name="_ftnref2" title="">[2]

            On
June 10, 2011, John White was working as a security officer at the Castle
Park Amusement Center in Sherman Oaks. 
About 8:20 p.m., he was monitoring the video game area when he saw
appellant A.C. and a female companion sitting “inside one of the video game
consoles.”href="#_ftn3" name="_ftnref3" title="">[3]  From 10 to 15 feet away, White “saw what
appeared to be a motion of [A.C.] vandalizing one of our video games.”  White testified A.C. “had his right hand
next to part of the video game console in a downward motion as in to [>sic] carving the video game
(indicating).”  The juvenile court described
White’s gesture:  “He appears to be
holding a small object and making downward strokes.”  White testified he did not see anything in
A.C.’s hand. 

            When
A.C. saw White watching him, he appeared “shocked,” his hand stopped moving and
then he lowered his hand.  When White
took a closer look at the video game console, he “noticed what appeared to be a
fresh mark with shavings.  After you
carve into wood or some kind of plastic, the shavings that come[] off.”  The mark was approximately a “five-inch line going
straight down” and it appeared to be in the same location where White had seen
A.C.’s hand making the downward motion. 
White did not hear anything drop or see any hand gesture indicating A.C.
was discarding something. 

            White
acknowledged that, when he started his work shift three hours earlier, he had
not inspected the video games to see if there were any fresh markings.  He did not know how many other people had
used the same video game console that day. 
The arcade usually repaired such markings by “resurfacing” the game
consoles.  This had been done a week
prior to the incident and the console A.C. was using had been resurfaced at
that time.  White testified new marks appeared
on the video games at varying frequencies, “from maybe once a week to maybe
once every other month.” 

>CONTENTIONS

            1.  There was insufficient evidence to support
the juvenile court’s determination A.C. had committed vandalism.

            2.  The record must be amended to reflect the
juvenile court’s finding A.C. committed misdemeanor vandalism rather than
felony vandalism.

            3.  The maximum term of confinement set forth by
the juvenile court must be stricken.

>DISCUSSION

            1.  Sufficient
evidence supported the vandalism finding.

            A.C.
contends there was insufficient evidence
to support the juvenile court’s true finding on the vandalism charge.  This claim is meritless.

                        a.  Legal
principles.

“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence – that is, evidence that is reasonable, credible, and of solid value –
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.  [Citation.]  The federal standard of review is to the same
effect:  Under principles of federal
due process, review for sufficiency of evidence entails not the determination
whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.  [Citation.]  The standard of review is the same in cases
in which the prosecution relies mainly on circumstantial evidence.  [Citation.] 
‘ â€œAlthough it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury,
not the appellate court[,] which must be convinced of the defendant’s guilt
beyond a reasonable doubt.  ‘ â€œIf the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.” â€™  [Citations.]” â€™  [Citation.]” 
(People v. Rodriguez (1999) 20
Cal.4th 1, 11.)

            “ â€˜An appellate court must accept logical inferences that the
[finder of fact] might have drawn from the circumstantial
evidence.’  [Citation.]  ‘Before the judgment of the trial court can
be set aside for the insufficiency of the evidence, it must clearly appear that
on no hypothesis whatever is there sufficient substantial evidence to support
the verdict of the [finder of fact].’ 
[Citation.]”  (>People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.)  As our Supreme
Court said in People v. Rodriguez, supra,
20 Cal.4th 1, while reversing an insufficient evidence finding because the
reviewing court had rejected contrary, but equally logical, inferences the jury
might have drawn:  “The [Court of Appeal]
majority’s reasoning . . . amounted to nothing more than a different
weighing of the evidence, one the jury might well have considered and
rejected.  The Attorney General’s
inferences from the evidence were no more
inherently speculative than the majority’s; consequently, the majority
erred in substituting its own assessment of the evidence for that of the
jury.”  (Id. at p. 12, italics added.)

                        b.  >Discussion.

            At
the adjudication hearing, the juvenile court denied A.C.’s motion to dismiss
for insufficient evidence, ruling: 
“[T]he witness testified clearly and credibly as to his
observations.  He didn’t stretch what he
saw.  He didn’t invent anything.  He saw two young people sitting in a video
game.  One of them was scratching the
surfaces of the console with something that left a mark.” 

            The
juvenile court then heard argument as to whether the People had proved beyond a
reasonable doubt A.C. committed vandalism. 
A.C.’s attorney argued: 
“We don’t know if the minor was just . . . looking at the
etchings that were there putting his finger on there.  We have no idea.  We have no idea what he was doing.  He could have been tracing with his fingers
on the etchings.  [¶]  The fact there was nothing found that could
have made such an etching I think is incredibly significant.  [¶]  In
order to find the People have met their burden of proving the case beyond a
reasonable doubt, I think you need some type of item, whether it’s a marker
or a razor blade or something, something that could create an etch.  And there is no evidence of such an
object.”  The juvenile court
rejected this argument:  “The court’s
. . . required to use its reasoning power.  And the information provided by the witness
indicates he made the observation and immediately after contact of the minor
observed the markings on the console.” 

            On
appeal, A.C. argues the evidence raised no more than a mere suspicion he had
vandalized the video game console.  He
notes White did not see an object in his hand, no object was recovered from the
area around the console, and White did not see or hear anything drop.  A.C. argues: 
“Finally, no object was recovered from appellant while he was at the
arcade, even after the police came to the scene.  Thus, no evidence supports the court’s
determination that appellant used an object to make the mark.”  A.C. asserts “it is inherently improbable, if
not physically impossible, based upon [White’s] testimony” that he “was the
person who damaged the video game console if he had no tool with which to
scratch it.”  A.C. suggests it is more
likely he was merely using his finger to feel a mark some other person had
already carved into the console, and that “[t]o the extent appellant looked
‘shocked’ when he saw White watching him, it stands to reason that he assumed
the guard would blame him for creating the mark.” 

            We
are not persuaded.  A.C.’s argument
ignores the legitimate inferences that flowed from White’s testimony.  White saw him make scratching motions in the
very area where the fresh mark and shavings appeared.  When he noticed White watching him, A.C.
looked shocked and immediately stopped what he was doing.  This constituted consciousness of guilt
evidence which, when combined with the other circumstantial evidence tending to
show A.C. had defaced the console, was sufficient to prove the offense.  (See, e.g., People v. Redrick (1961) 55 Cal.2d 282, 287-288 [where sufficiency
of evidence to prove illegal drug possession (i.e., dominion and control with
knowledge of its presence and narcotic character) “might otherwise have been
doubtful, it was strengthened by a showing of consciousness of guilt”].)  Although White never saw the object A.C.
presumably used to deface the console, A.C. could have successfully concealed
it.  That no object was found even after
the police arrived is not very probative because there was no evidence the
police searched A.C.

            A.C.’s
proposed exculpatory scenario, i.e., that he had merely been using his finger
to trace a mark made by someone else, does not help him because it is no less
speculative than the inculpatory inferences flowing from the undisputed
evidence.  (See People v. Rodriguez, supra, 20 Cal.4th at p. 12, italics added
[where “Attorney General’s inferences from the evidence were >no more inherently speculative than
[Court of Appeal] majority’s; 
. . . the majority erred in substituting its own assessment of
the evidence for that of the jury.”].)

            We
conclude there was sufficient evidence to sustain the true finding that A.C.
committed vandalism.

            2.  Minute
order designating the vandalism as a felony should be corrected.

            A.C.
contends a nunc pro tunc minute order in the clerk’s transcript should be
corrected to show the vandalism offense was a misdemeanor, not a felony.  The Attorney General concedes the minute
order is mistaken.

            Section 594
proscribes vandalism:  “(a) Every
person who maliciously commits any of the following acts with respect to any
real or personal property not his or her own, in cases other than those
specified by state law, is guilty of vandalism: 
[¶]  (1) Defaces with
graffiti or other inscribed material. 
[¶]  (2) Damages.  [¶] 
(3) Destroys.”  Under
subdivision (b)(1) of section 594, if “the amount of defacement,
damage, or destruction is four hundred dollars ($400) or more” the vandalism is
a wobbler; i.e., it may be either a misdemeanor or a felony.  (§ 17, subd. (a).)  However, if “the amount of defacement,
damage, or destruction is less than four hundred dollars ($400)” vandalism is a
misdemeanor.  (§ 594,
subd. (b)(2)(A).)

            As
the Attorney General acknowledges, the People did not present any evidence as
to the amount of damage caused by A.C., and after hearing all the evidence the
juvenile court designated the vandalism offense a misdemeanor.  Thereafter, a minute order entered the same
day as the adjudication hearing declared one count to be a felony
(i.e., the drug charge) and the other count to be a misdemeanor (i.e., the
vandalism charge).  However, a subsequent
nunc pro tunc minute order purported to “correct” the first order by
designating both offenses as felonies. 
This nunc pro tunc order was erroneous because the record demonstrates
the juvenile court acknowledged the People had failed to prove any damage
amount.

            The
“record of the oral pronouncement of the court controls over the clerk’s minute
order” (People v. Farell (2002) 28
Cal.4th 381, 384, fn. 2), and “a discrepancy between the judgment as orally
pronounced and as entered in the minutes is presumably the result of clerical
error.”  (People v. Mesa (1975) 14 Cal.3d 466, 471.)  It is appropriate for us to now correct this
error.  (See In re Candelario (1970) 3 Cal.3d 702, 705 [“It is not open to
question that a court has the inherent power to correct clerical errors in its
records so as to make these records reflect the true facts. . . .  The court may correct such errors on its
own motion or upon the application of the parties.”].)

            We
will order the judgment modified accordingly.

            3.  Designated
maximum term of confinement should be stricken.

            A.C.
contends the juvenile court erroneously specified a maximum term of physical
confinement of three years and four months because A.C. was not ordered into
confinement at all; rather, he was placed home on probation.  We agree.

            As
noted by In re Matthew A. (2008)
165 Cal.App.4th 537, 541:  “When a minor
is removed from the physical custody of his parent or custodian as a result of
criminal violations sustained under Welfare and Institutions Code section 602,
the court must specify the maximum term of imprisonment that could be imposed
upon an adult convicted of the same offense or offenses.  (Welf. & Inst. Code, § 726,
subd. (c).)  [¶]  Appellant was not removed from his mother’s
physical custody.  This means that
the necessary predicate for specifying a term of imprisonment does not
exist.  The sentencing authority of a
court in almost all instances is prescribed by statutory law, as it is in this
case.  The statute did not empower the
court to specify a term of imprisonment and that should have been the end of
the matter.”

            We
will modify the judgment by striking the juvenile court’s specification of a
maximum term of physical confinement.

DISPOSITION

            The
judgment is modified by striking the juvenile court’s specification of a
maximum term of physical confinement, and by correcting the vandalism
designation to reflect that it was a misdemeanor.  As so modified, the judgment is
affirmed.  The trial court is
directed to correct its judgment consistent with this opinion.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    KLEIN,
P. J.

 

 

We concur:

 

 

 

                        CROSKEY,
J.

 

 

 

 

                        KITCHING,
J.