In re Alec R.
Filed 2/27/13
In re Alec R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re ALEC R., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALEC R.,
Defendant and
Appellant.
F065121
(Super.
Ct. No. JJD065191)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Juliet L. Boccone, Judge.
Kristen
Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
The court readjudged appellant,
Alec R., a ward of the court after it sustained allegations in a subsequent
with conspiracy to shoot at an inhabited dwelling (count 2/Pen. Code, §§ 182,
subd. (a)(1) & 246) and resisting arrest (count 3/Pen. Code, § 148, subd.
(a)(1)). On appeal, appellant contends
the court erred when it denied his motion to dismiss these two offenses. We find merit to this contention with respect
to the conspiracy charge. In all other
respects, we affirm.
FACTS
On March 13, 2012, the
County District Attorney filed a juvenile wardship petition charging
appellant with shooting at an inhabited dwelling (count 1/Pen. Code, § 246),
conspiracy to shoot at an inhabited dwelling (count 2), and resisting arrest
(count 3).
The evidence at appellant’s
jurisdictional hearing established that at around midnight on March 9, 2012,
someone fired at least two rounds from a shotgun at Chanou See’s house on North
Bridge Street in Visalia, damaging the front door and breaking a bedroom
window.
Ernie Ramirez testified that he
arrived home from work just prior to the shooting. As he drove up to his house, which was
located in a cul-de-sac named East Parker Court, Ramirez saw two people just
north of See’s residence standing at the northeast corner of East Parker Court
and North Bridge Street. The subjects
were dressed in black hoods and black pants and Ramirez could not see their
faces. Five seconds after entering his
house, Ramirez heard two shots. He
looked out a window and saw the two subjects standing about 10 feet away from
See’s house and then running east down East Parker Court, past a barricade, and
into an open area where some abandoned railroad tracks were located. Ramirez noticed one of them appeared to be
holding something in his hand.
Ramirez’s mother was also in the
house at the time. After hearing two
gunshots, she looked out a bedroom window and saw two people wearing black or
dark blue hoods running east down East Parker Court towards the open area.
Visalia Police Officer Kevin Grant testified
he was on patrol when he heard dispatch report that two subjects wearing dark
clothing were running eastbound from a residence that had just been shot at. After parking his patrol car on Houston
Avenue, south of the location where the two subjects had been seen running,
Officer Grant got out and began walking north toward the open area. He then saw three subjects in black clothing
running directly toward him. When the
subjects were about 40 yards away from the officer, they stopped, turned
around, and began running in the opposite direction. Officer Grant immediately identified himself
as a police officer and ordered them to stop.
One subject continued running north
and then east over a fence and into to a residential backyard. Officer Grant pursued the two other subjects,
who ran in a northwestern direction through an apartment complex carport and
onto a cul-de-sac named East Sweet Court.
One subject gave up and lay on the ground with his hands behind his back
but the other subject kept running.
Within a minute of taking the subject on the ground into custody,
Officer Grant heard that Officer Brown had apprehended another subject.
Officer Grant believed the subject
who gave up may have been carrying something because prior to running through
the carport the subject was using only one hand to run and his other hand
appeared to be “stuck to his front.â€
After the subject came out of the carport, he ran at a full sprint and
used both hands. When Officer Grant
searched the subject, he found a spent round of Federal Brand .20 gauge
birdshot in one of his pockets. Officer
Grant then retraced the route that he had chased the subjects and found a sawed
off shotgun under a parked vehicle.
Officer Curtis Brown testified he
responded to the area after hearing dispatch report the subjects were last seen
running into the open area where the abandoned railroads tracks were
located. Ten seconds after Officer Grant
reported he was in pursuit of two subjects, Officer Brown saw a subject, later
identified as appellant, running southbound off of North Bridge Street, across
Houston Avenue, directly in front of his patrol vehicle, and into an open
field. Officer Brown activated the
overhead emergency lights on his patrol car and followed appellant into the
field where Officer Brown exited his vehicle and ordered appellant to get on
the ground. Appellant hesitated but by
that time Officer Brown had reached him, and with his gun drawn, pushed
appellant to the ground. At that point,
appellant complied with the officer’s commands and was taken into custody.
Officer Ricardo Loza testified he
interviewed appellant at the police station.
According to appellant, earlier he had been walking on the north side of
Houston Avenue, in the area of Houston Avenue and Northeast Fourth Avenue, when
he heard two shotgun blasts and ran southbound toward an apartment complex on
the east side of Northeast Fourth Avenue.
Appellant had been headed to a party at a large water tower that was
located about a quarter mile south of Houston Avenue. Appellant denied firing a weapon.
Officer Julie Moore testified that
after hearing a dispatch about the shooting, she drove up Northeast Fourth
Avenue towards Houston Avenue. On the
way to See’s residence, she saw a Hispanic juvenile run down North Bridge
Street, across Houston Avenue, and into a dirt field.
At the conclusion of the
prosecution’s case, the defense moved to dismiss all three counts. The court granted the defense motion to
dismiss as to count 1, but denied it as to counts 2 and 3. In denying the defense motion to dismiss the
resisting arrest count, the court found appellant resisted Officer Grant when
he failed to obey the officer’s commands to stop.
DISCUSSION
Appellant
contends the court erred when it denied his motion to dismiss as to counts 2
and 3 because the prosecutor presented insufficient evidence that appellant
conspired with anyone to shoot at See’s residence or that he was one of the
three people who fled from Officer Grant.
We will find the evidence sufficient to support the court finding
appellant resisted arrest but insufficient to sustain its finding that he
committed conspiracy to shoot at an inhabited dwelling.
“Welfare
and Institutions Code section 701.1 is substantially similar to Penal Code
section 1118.[
that in enacting section 701.1, the Legislature intended the rules and
procedures applicable to section 1118 to apply with equal force to
proceedings. [Citation.] Consequently, the standard for review of the
court’s denial of a motion to dismiss is whether there is substantial evidence to support the
offense charged in the petition.
[Citation.] In applying the substantial
evidence rule, we must ‘assume in favor of [the court’s] order the existence of
every fact from which the [court] could have reasonably deduced from the
evidence whether the offense charged was committed and if it was perpetrated by
the person or persons accused of the offense.
[Citations.] Accordingly, we may
not set aside the trial court’s denial of the motion on the ground of the
insufficiency of the evidence unless it clearly appears that upon no hypothesis
whatsoever is there sufficient substantial evidence to support the conclusion
reached by the court below.’
[Citations.]†(
482.)
of the offense of resisting,
delaying,
or obstructing
a police officer are that the defendant willfully resisted, delayed, or
obstructed a police officer when the officer was engaged in the performance of
his or her duties, and the defendant knew or reasonably should have known that
the other person was a police officer engaged in the performance of his or her
duties. (In re Muhammed C. (2002)
95 Cal.App.4th 1325, 1329.)
Here, at around midnight on March
9, 2012, three people were seen by Officer Grant running toward him in an open
area where two people had been seen fleeing to after one of them fired two
shotgun blasts at the See residence.
Upon seeing Officer Grant, the three subjects began running and Grant
pursued two of them. Ten to 15 seconds
later, Officer Brown saw appellant running down North Bridge Street and across
Houston Avenue about a block and a half away from the location where Officer
Grant detained one suspect. Further,
appellant’s claim that prior to being arrested he had been walking on the north
side of Houston Avenue in the area of Northeast Fourth Avenue and Houston
Avenue when he heard gunshots was contradicted by Officers Moore and Brown, who
saw him running south on North Bridge Street.
The court could reasonably have found from these circumstances that
appellant was one of the three suspects who disobeyed Officer Grant’s order to
stop and who eluded him after running on to East Sweet Court. However, this evidence does not support the
court’s adjudication of appellant for conspiracy.
“Conspiracy is an inchoate
crime. [Citation.] It does not require the commission of the
substantive offense that is the object of the conspiracy. [Citation.]
crime, conspiracy fixes the point of legal intervention at [the time of]
agreement
commit a crime,’ and ‘thus reaches further back into preparatory conduct than
attempt....’ [Citation.]
of conspiracy is defined in the Penal Code as ‘two or more persons
conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of
an overt act ‘by one or more of the parties to such agreement’ in furtherance
thereof. [Citation.] ‘Conspiracy is a
“specific intent†crime.... The specific
intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b)
the intent to commit the offense which is the object of the conspiracy.... To sustain a conviction for conspiracy to
commit a particular offense, the prosecution must show not only that the
conspirators intended to agree but also that they intended to commit the
elements of that offense.’ [Citation.]
In some instances, the object of the conspiracy ‘is defined in
terms of proscribed conduct.’
[Citation.] In other instances,
it ‘is defined in terms of ... a proscribed result under specified attendant
circumstances.’ [Citation.]
599-600.)
The evidence here showed that just
before midnight on March 9, 2012, two suspects in dark clothing approached the
See residence and fired two to three shots at the house, hitting the front door
and breaking a bedroom window. However,
the prosecution did not present any evidence from which the trial court could
reasonably infer that appellant was one of the two suspects or that prior to
the shooting appellant agreed with either or both of the suspects that one of
them would discharge a shotgun at the residence.
Respondent cites appellant’s
apprehension near the scene of the shooting within a minute and half after
three subjects ran from Officer Grant and his statement to Officer Loza, which
the court could have found was false, as evidence that supports the conspiracy
charge.
the site of the shooting soon after it happened, the evidence failed to
establish that he was one of the two suspects who actually participated in the
shooting. At most it shows only that
appellant accompanied the actual perpetrators after the shooting and probably
before. Additionally, appellant could
have accompanied the actual perpetrators prior to the shooting without knowing
that they intended to shoot at the See residence or knowing of their intent,
but not sharing it. Further, respondent
does not explain why it can, nevertheless, be reasonably inferred from the
circumstances it cites that appellant agreed with one or both of the other
suspects to shoot at the See residence.
Accordingly, we find the evidence insufficient to support the court’s
adjudication of appellant for conspiracy
to shoot at an inhabited dwelling.
DISPOSITION
The
juvenile court’s true finding with respect to charge of conspiracy to shoot at
an inhabited dwelling is reversed and its disposition order is vacated. Additionally, the matter is remanded to the
juvenile court for a new disposition hearing.
In all other respects the judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Kane, J. and Franson, J.
name="_ftn2" title="">[1] “Penal Code section 1118 provides: ‘In a case tried by the court without a jury,
a jury having been waived, the court on motion of the defendant or on its own
motion shall order the entry of a judgment of acquittal of one or more of the
offenses charged in the accusatory pleading after the evidence of the
prosecution has been closed if the court, upon weighing the evidence then
before it, finds the defendant not guilty of such offense or offenses. If such
a motion for judgment of acquittal at the close of the evidence offered by the
prosecution is not granted, the defendant may offer evidence without first
having reserved that right.’â€
