In re J.C.
Filed 9/18/12 In re J.C. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re J.C, a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
D059916
(Super. Ct.
No. J228653)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Dwayne K. Moring, Judge. Affirmed.
In March
2011 a petition was filed alleging that 16 year-old J.C. entered a building
with the intent to commit a felony (Pen. Code, § 459; count 1). (All further undesignated statutory
references are to the Penal Code.) The
petition further alleged that J.C. committed an assault on the victim, Jesse
G., by means of force likely to produce great bodily injury (§ 245, subd.
(a)(1); count 2) and attempted to kidnap Jesse G. (§§ 207, subd. (a), 664;
count 3). The petition also alleged two
misdemeanor violations: that J.C.
possessed specified instruments with an intent to commit vandalism or graffiti
(§ 594.2, subd. (a); count 4), and unlawfully
resisted a peace officer (§ 148, subd. (a)(1); count 5). As to counts 1 through 3 it was alleged that
J.C. committed those offenses for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1).
Following a
bench trial, the court made true findings as to counts 2 and 5. The court found counts 1 and 3, and the gang
enhancement, had not been proven. Count
4 was dismissed on the People's motion after presentation of the People's
case-in-chief.
On appeal,
J.C. asserts (1) there was not sufficient evidence that he aided and abetted
another individual in the assault on Jesse G, and (2) the court should have
struck Jesse G.'s testimony because he was unavailable during the defense's
case, thereby violating his right to due process and to confront
witnesses. We affirm.
FACTUAL
BACKGROUND
A.
Carmen
Cincotta shared an apartment with several individuals, including Carmen Medina
and her mother, Maria Medina, and 15-year-old Jesse G. Carmen Medina was dating an individual named
Mario Rodriguez. However, there were
rumors that she was also dating Jesse G. and that Mario was jealous.
Mario had a
relationship with J.C. that people described as "brothers" or
"stepbrothers." Mario and J.C.
were frequent visitors to Cincotta's home.
On March 8, 2011, Cincotta was at home
and received a text message from J.C. asking if he could come over. Cincotta responded that it was okay.
Maria
Medina was in the living room with her daughter, Ana. Someone rang the doorbell and Ana looked to see
who it was. She saw only J.C. After J.C. entered, Mario entered.
When Mario
entered, Maria could see that he was upset.
Mario went directly to the bedroom, while J.C. stayed in the living
room. When Mario went to Cincotta's
bedroom door, he had a raised and angry voice and said he needed to talk to
Jesse G. Jesse G. came out of the
bedroom and he and J.C. started arguing.
Mario grabbed Jesse G. by the neck and started shoving him out of the
house. Cincotta came out of her bedroom
and saw this. J.C. prevented anyone from
interfering by standing between Mario and Jesse G. and the rest of the people
in the room. The front door was open and
Mario told J.C., "We have to get him." Cincotta pulled Jesse G. back into the
apartment. Mario was screaming, "We
need to get him out of this house."
There was a struggle as Mario was trying to pull Jesse G. out of the
house and Cincotta was pulling him inside.
Mario hit Jesse G. in the mouth.
Maria
scolded J.C. for bringing Mario to the apartment and told him to leave. J.C. went outside. Mario left with J.C. Jesse G. sustained a chipped tooth and
bruises on his neck, arms and ribs.
San Diego
County Sheriff's Deputy Joe Barry was called to the scene. He spoke with Jesse G., who told him he had
been confronted by Mario and J.C. They
told him he needed to leave with them so they could beat him up. Jesse G. left the bedroom and Mario assaulted
him and tried to drag him outside the house.
J.C. said, "Let's go. We'll
take him to Malo's house." J.C. also
said as he was leaving, "This is our territory, fool. This is IB."
"Malo"
is a known gang member from the Imperial Rascals.
B.
About two
weeks before the incident, Carmen Medina and Jesse G. moved in with
Cincotta. Prior to the incident, Mario
never made it known that he was upset about the rumors concerning Jesse G. and
Carmen Medina. Cincotta did not know if
J.C. was aware Mario was upset in the days prior to the incident.
On the day
of the incident, Cincotta never told J.C. not to bring Mario with him. With regard to the incident, Cincotta
testified that J.C. did not assist Mario in any way in his attack on Jesse
G.
DISCUSSION
I.
AND ABETTED MARIO IN HIS ASSAULT ON JESSE G.
J.C. asserts
that there is insufficient evidence to support the court's finding that he
aided and abetted Mario in his assault on Jesse G. Specifically, J.C. asserts the evidence does
not show he knew of and shared Mario's criminal intent to assault Jesse G. or
that he facilitated Mario in the commission of the crime. This contention is unavailing.
A.
In
determining the sufficiency of the evidence to support a conviction, "the
relevant question is 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." (Jackson
v. Virginia (1979) 443 U.S. 307, 319.)
"[T]he court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
B.
A person
aids and abets the commission of a crime when he or she, acting (1) with
knowledge of the perpetrator's unlawful purpose, and (2) with intent or purpose
of committing, encouraging, or facilitating the commission of the offense, (3)
by act or advice aids, promotes, encourages or instigates the commission of the
crime. (People v. Croy (1985) 41 Cal.3d 1, 11-12; People v. Beeman (1984) 35 Cal.3d 547, 561; see also CALCRIM No.
401.) Direct evidence of the mental state is rarely
available and may be shown with circumstantial evidence. (Beeman,
supra, at pp. 558-559.)
"Mere presence at the scene of
a crime which does not itself assist its commission or mere knowledge that a
crime is being committed and the failure to prevent it does not amount to
aiding and abetting." (
907, 911.) "Whether a person has
aided and abetted in the commission of a crime ordinarily is a question of
fact. . . . [¶] . . . [¶] Among the factors which may be considered in
making the determination of aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense. [Citations.]
In addition, flight is one of the factors which is relevant in
determining consciousness of guilt."
(In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094-1095.)
C.
Here there
is ample evidence both that J.C. shared Mario's criminal intent and facilitated
the crime. He texted Cincotta and asked
if he could come over, without telling her that Mario was also with him. When there was a knock on the door, Ana only
saw J.C. because Mario was behind him.
Thus, J.C. made it possible for Mario to enter the apartment. They
entered the apartment together and left together after the assault
occurred. Maria testified that J.C.
stood between Mario and everyone else in the room to block anyone from interfering
while Mario assaulted Jesse G. As Mario
was trying to drag Jesse G. outside, J.C. said, "Let's go. We'll take him to Malo's house." J.C. also said as he was leaving, "This
is our territory, fool. This is
IB." This constitutes sufficient
evidence J.C. facilitated Mario's assault on Jesse G. Additionally, that same evidence is
sufficient to show that J.C. shared Mario's intent to assault Jesse G.
J.C. relies
heavily on People v. Hill (1946) 77
Cal.App.2d 287 (Hill) in support of
his contention he did not have knowledge of Mario's intent to assault Jesse
G. However, Hill does not support
J.C.'s position.
In
principals to drive around to look for some girls. (Hill,
supra, 77 Cal.App.2d at p. 291.)
After defendant was told to pull up to a nearby bar and wait inside the
car, two of the car's occupants entered the bar and robbed the bartender at
gunpoint. (Id. at p. 288.) Once they
exited they found the defendant asleep in the driver's seat. (Ibid.) At trial, the two men who robbed the bar exonerated
the defendant, testifying that they asked him to drive around looking for girls
and that they did not tell him they were going to rob a bar. (Id. at
p. 291.) The Court of Appeal held that
the defendant's mere presence, without a showing of his knowledge of the
perpetrators plans was insufficient to show he aided and abetted the
crime. (Id. at p. 294.)
Here,
however, as detailed, ante, there was
ample evidence J.C. knew of Mario's plan to assault Jesse G.
J.C.'s
reliance on In re Michael T., supra,
84 Cal.App.3d 907 is also misplaced. In
that case, the principal fatally shot a liquor store clerk. Shortly before the shooting occurred, the
minor warned two people outside the liquor store that a shooting was going to
happen. Later in the evening, the minor
told some people, "We got the guy."
(Id. at p. 909.) However, aside from his statements and his
presence near the scene of the crime, there was no evidence the minor
participated in the murder by rendering physical aid or encouragement. (Id. at
p. 910.) The Court of Appeal concluded
that the evidence was insufficient to show the minor aided and abetted the
murder. (Id. at p. 911.)
Here,
however, J.C.'s participation went beyond mere presence at the scene. He aided the crime by making it possible for
Mario to enter the apartment and then prevented anyone from interfering with
the assault. There was substantial
evidence J.C. aided and abetted the assault on Jesse G.
II. ADMISSION
OF JESSE G.'S STATEMENTS TO DEPUTY BARRY
J.C.
asserts that the court erred in admitting Jesse G.'s extrajudicial statements
through the testimony of Deputy Barry.
We reject this contention.
A.
Jesse G.
was called as a witness during the People's case-in-chief. He was asked whether he made a number of
statements to Deputy Barry, as described, ante.
He denied making the
statements. Defense counsel then
cross-examined Jesse G. and excused him, subject to recall.
Deputy
Barry was called as a witness by the People and testified as to the statements
made to him by Jesse G. at the scene of the crime—the statements Jesse G. had
denied making. Defense counsel objected
to the testimony on hearsay and confrontation grounds. The court overruled the objection, stating,
"This is a prior inconsistent statement that counsel is trying to inquire
about. Again, it would be a statement
that the witness, Jesse [G.], was able to explain or deny." Defense counsel then cross-examined Deputy
Barry.
Defense
counsel recalled Jesse G. during the defense case. Jesse G. invoked his Fifth Amendment right not to incriminate
himself. Defense counsel then made a
motion to strike Jesse G.'s entire testimony and any testimony by Deputy Barry
regarding statements made by Jesse G.
The prosecutor responded that the questions posed to Jesse G. by defense
counsel were the same questions he answered during the People's case and that
the defense had a fair opportunity to cross-examine him during that portion of
the trial.
The court
denied the motion to strike, finding,
"The minor has had plenty of opportunity to cross-examine the
witness. [¶] The witness's testimony is
really consistent today with—as far as [the] result is concerned, as it was
yesterday. Yesterday, he had no
recall. He denied making the
statements. And today he does not make
any statements at all. [¶] This witness
has not provided any testimony that should be stricken."
B.
Generally,
"evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter
stated" is hearsay and thus inadmissible.
(Evid. Code, § 1200; Correa
v. Superior Court (2002) 27 Cal.4th 444, 451 ["In general, hearsay
evidence is inadmissible."]; Kulshrestha
v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608 ["In
judicial proceedings, the trustworthiness of the evidence and the reliability
of the factfinding process depend upon the notion that persons who possess
relevant information appear in court and undergo
cross-examination."].)
In the instant case, however, the
statement was admitted under Evidence Code sections 1235 and 770. Evidence Code section 1235 states: "Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in compliance
with Section 770." Evidence Code
section 770 states: "Unless the
interests of justice otherwise require, extrinsic
evidence of a statement made by a witness that is inconsistent with any
part of his testimony at the hearing shall be excluded unless: [¶]
(a) The witness was so examined while testifying as to give him an
opportunity to explain or to deny the statement; or [¶]
(b) The witness has not been excused from giving further testimony
in the action."
Inconsistency
will be implied when a witness's trial testimony that he or she does not
remember an event is deliberate evasion and untruthful. (People
v. Sapp (2003) 31 Cal.4th 240, 296.)
We review a trial court's decision to admit evidence under an exception
to the hearsay rule for abuse of discretion.
(People v. Guerra (2006) 37
Cal.4th 1067, 1113.)
In
the California Supreme Court held that the trial court did not abuse its
discretion in admitting a witness's prior inconsistent statement under Evidence
Code sections 770 and 1235. The witness
told a detective that he saw the defendant put a gun to the victim's head while
she was being raped. At trial, however,
the witness testified that that he did not see the defendant at the scene. (Id. at
pp. 579-580.) The court ruled that the
People had the right to rebut the witness's trial testimony with his prior
inconsistent statement to the detective.
(Ibid.)
Likewise,
when Jesse G. testified in this case, he was confronted with the statements he
made to Deputy Barry and he denied that he had made them. He was cross-examined by defense counsel and
excused subject to recall. Then, Deputy
Barry testified as to his interview with Jesse G. after the assault and Jesse
G.'s statements to him. Because Jesse
G.'s testimony at trial was inconsistent with his prior statements to Deputy
Barry and defense counsel was given a fair opportunity to cross-examine Jesse
G. and Deputy Barry, the court properly admitted the prior inconsistent
statements under Evidence Code sections 1235 and 770.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
