In re Keven B.
Filed 2/4/13 In
re Keven B. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
In re KEVEN B., a Person Coming
Under the Juvenile Court Law.
B229800
(Los Angeles County
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVEN B.,
Defendant and Appellant.
Super. Ct. No. TJ18965)
APPEAL from
an order of the Superior Court of
County, Charles Scarlett, Judge.
Affirmed.
Jonathan E.
Demson, 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, Senior Assistant Attorney General, Steven D. Matthews and
Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
_________________
Keven B. appeals from the
juvenile court’s order declaring him a ward of the court after finding he
committed second degree robbery and placing him home on probation. During the pendency of the appeal, the
parties were unable to produce a viewable copy of a DVD of a security camera
videotape that had been admitted into evidence and viewed by the juvenile court
during the jurisdiction hearing. Keven contends that the People’s failure to
produce a viewable copy of the DVD deprives him of his constitutional rights to
meaningful appellate review of his challenge to the sufficiency of the evidence
and, alternatively, that the evidence is insufficient to establish that he
aided and abetted the commission of the robbery. Keven further argues one of the conditions of
his probation is overbroad. We affirm.
1. The
Delinquency Petition
The People filed a Welfare
and Institutions Code section 602 petition alleging Keven, then 17 years old,
committed one count of second degree robbery against Paul Gilbert on November
17, 2010. Keven, represented by
appointed counsel, denied the allegation.
2.
Gilbert testified that in the early hours of November
17, 2010, he was outside a gas station convenience store, sitting in his
wheelchair, making a call on his cell phone.
Three male youths, including Keven, approached Gilbert and surrounded
him.
while one of the other youths started searching through a bag attached to
Gilbert’s wheelchair. The third youth
demanded that Gilbert surrender either his wheelchair or his cell phone. Gilbert gave up his wheelchair, because he
believed the youths were gang members and feared what they would have done had
he refused to comply. Keven and the
other two youths took the wheelchair and left the gas station together. Gilbert telephoned police.
The parties stipulated Gilbert had felony convictions
for making a criminal threat in 2003 and for burglary in 2000 and in 2007. On cross examination, Gilbert admitted he had
been under the influence of alcohol at the time of the robbery, having consumed
three 16-ounce beers either one or two hours before leaving home for the gas
station.
Los Angeles Police Detective Trevor Larsen
investigated the robbery. He testified a
gas station security camera videotaped (but did not audiotape) the November 17,
2010 robbery. Larsen obtained a DVD of
the videotape, reviewed it prior to trial, and on direct examination described
what it depicted.
According to Larsen, the DVD showed Gilbert sitting in
his wheelchair outside the convenience store.
Four youths, whom Larsen identified as Keven, Hill, Phillips, and a
fourth male, who Larsen described as not associated with the case, walked
towards Gilbert while conversing together.
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talking. Keven was standing just behind
Gilbert’s right shoulder, Phillips was standing nearly in front of Gilbert, and
Hill positioned himself directly in front of Gilbert. Hill began arguing with Gilbert and searching
through a bag attached to Gilbert’s wheelchair.
At some point, all four youths walked out of camera
range. Moments later, Keven, Hill and
Phillips returned and surrounded Gilbert, who was still sitting in his
wheelchair. Hill resumed arguing with
Gilbert, who became visibly upset. After
a time, Gilbert stood up, stepped out of his wheelchair, raised his hands and
backed away. Keven walked around to
stand in front of Gilbert as Philips moved to Gilbert’s left and sat down in
the wheelchair. Hill began pushing
Phillips away in the wheelchair, and Keven walked with them out of camera
range. The DVD ended with Gilbert
talking on his cell phone outside the convenience store.
On cross-examination of Detective Larsen, defense
counsel noted at one point the DVD showed that Keven: (1) initially walked toward the window of the
convenience store, with his back toward Gilbert; (2) did not join in Hill’s
conversation with Gilbert; and (3) walked a few steps alone before Hill began
pushing Phillips in the wheelchair.
Counsel also noted the police report indicated Keven was alone when
officers detained him, while Hill and Phillips were apprehended together and in
possession of the wheelchair.
At the completion of the People’s presentation of
evidence, defense counsel made a motion to dismiss. (Welf. & Inst. Code § 701.1.) In support of her motion, counsel introduced
into evidence part of the police report, a copy of the DVD of the security camera
videotape and a photograph taken from the videotape.
After reviewing the DVD and hearing counsels’
arguments, the juvenile court denied the motion to dismiss. The defense then rested, without Keven
testifying or presenting additional evidence in his defense.
Following
argument by counsel, the juvenile court determined the evidence established
beyond a reasonable doubt that Keven had aided and abetted the commission of
second degree robbery and sustained the petition.
3.
The Disposition Hearing
The juvenile court declared
Keven a ward of the court, and ordered him home on probation. Keven was also ordered, among other probation
conditions, to attend a school program approved by the probation officer and to
enroll in college. Keven timely
appealed.
4.
During the pendency of
this appeal, we granted Keven’s motion to augment the record with a copy of the
DVD of the security camera videotape and ordered the District Attorney’s Office
to submit to the superior court a viewable copy of the DVD, to be forwarded to
this court. Thereafter, the District
Attorney’s Office advised the juvenile court that it had a copy of the DVD, but
it was not viewable. Keven filed a
motion in this court for a settled statement concerning the DVD (see Cal. Rules
of Court, rule 8.137), which we granted.
At the settled statement
hearing, the trial prosecutor was not present because he was no longer employed
by the District Attorney’s Office. Over
the People’s objection, the juvenile court permitted defense counsel, who
represented Keven at the jurisdiction hearing, to make a record of her memory
of the DVD.
Defense counsel stated she recalled the DVD showed
Keven arrived alone at the gas station, and walked past Gilbert to the
convenience store window. Keven had his
back to Gilbert, who was sitting in a wheelchair. While Keven was still turned away, Hill
walked up with two other youths and engaged Gilbert in an animated argument. Keven then turned to face Hill and Gilbert,
who were still arguing. Keven stood
there, as the argument continued, before walking away. At that point, Phillips sat in the
wheelchair, and Hill pushed him out of the gas station.
A
settled statement, settling the record with respect to the DVD of the security
videotape was prepared and filed, adopting defense counsel’s statement of what
the DVD depicted.
DISCUSSION
1.
Prevent Meaningful Appellate
of the Evidence
A defendant in a criminal matter is entitled to an
appellate record adequate to permit “‘meaningful appellate review.’†(People
v. Seaton (2001) 26 Cal.4th 598, 699.)
There is no rule of appellate procedure, however, that mandates reversal
per se for lost or destroyed trial exhibits; instead, “‘[t]he record on appeal
is inadequate . . . only if the complained-of deficiency is prejudicial to the
defendant’s ability to prosecute his appeal.’â€
(Seaton, supra, 26 Cal.4th at
p. 699; People v. Coley (1997) 52
Cal.App.4th 964, 969 [Criminal defendants are entitled to due process, not
perfect process].) Lost or destroyed
exhibits may be reconstructed in some instances. (People
v. Osband (1996) 13 Cal.4th 622, 661-633.)
The burden is on the defendant to show any claimed deficiency from a
missing or inadequately reconstructed exhibit is prejudicial, such that it
prevents meaningful appellate review. (
663.) In cases where loss or destruction
of evidence was held to prevent meaningful appellate review, no adequate
substitute was available under the particular circumstances. (See e.g. In
re Roderick S. (1981) 125 Cal.App.3d 48 [reversal required where reporter’s
transcript did not contain sufficient evidence of illegality of possessed
knife, and the knife was not available for examination by appellate
court].)
Here, it was undisputed
the DVD of the security camera videotape could not be produced. Because it was not available, Keven properly
sought a settled statement hearing, in which both parties were given the
opportunity to participate. The purpose
of the settled statement hearing was to prepare a record of the contents of the
missing DVD shown at the jurisdiction hearing for purposes of appeal. (People
v. Anderson (2006) 141 Cal.App.4th 430, 440 [“[T]he purpose of a settled
statement is to provide the appellate court with a record of trial court
proceedings for which there is no formal contemporary record, commonly because
the court reporter’s notes have been lost [citation] or because a court reporter
was not present to record the proceedings.
[Citation.] In other words, the
settled statement is used for filling ‘gaps in the [appellate] record.’ [Citation.]â€.) At the conclusion of the hearing, the
juvenile court adopted the defense view of the contents of the DVD in its
settled statement. The relevant issue
then is whether the settled statement permits meaningful appellate review of
Keven’s challenge to the sufficiency of the evidence.
We conclude the settled
statement is an adequate substitute for the missing DVD in this case. (See People
v. Osband, supra, 13 Cal.4th at
p. 662 [adequacy of settled and reconstructed record is reviewed de
novo].) First, the settled statement
provides a sufficiently clear description of the relevant portions of the DVD
for this court to consider it as part of the record. Second, the settled statement sets forth the
defense view of what the DVD depicted—that Keven was merely present when
the robbery occurred—as defense counsel repeatedly indicated in referring to
portions of the security videotape during her cross-examination of Detective
Larsen and in her arguments to the juvenile court.
2. Substantial Evidence Supports
the Juvenile Court’s Finding Keven Committed
Robbery
a.
“The same standard of appellate review is applicable
in considering the sufficiency of the evidence in a juvenile proceeding as in
reviewing the sufficiency of the evidence to support a criminal
conviction.†(In re Sylvester C. (2006) 137 Cal.App.4th 601, 605;
718, 726.) In either case, “we review
the whole record to determine whether any rational trier of fact could have
found the essential elements of the crime or special circumstances beyond a reasonable
doubt. [Citation.] The record must disclose substantial evidence
to support the verdict―i.e., 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.] In applying this
test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.
[Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.
[Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
supportâ€â€™ the jury’s verdict.†(
327, 357.)
b. There
is Sufficient Evidence Keven Aided and Abetted the Robbery
Robbery is “the felonious taking of personal property
in the possession of another, from his person or immediate presence, and
against his will accomplished by means of force or fear.†(Pen. Code, §211, People v. Harris (1994) 9 Cal.4th 407, 415), and requires the
specific intent to permanently deprive the victim of his or her property (
robbery “when he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (2) by act or advise aids,
promotes, encourages or instigates, the commission of the crime.†(People
v. Beeman (1984) 35 Cal.3d 547, 561; see People v. Perez (2005) 35 Cal.4th 1219, 1225.) The elements of aiding and abetting may be
determined from a variety of factors, including the presence at the scene of
the crime, companionship, conduct before and after the offense, and
flight. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.).
For example, in Juan
G., this court held the juvenile court had reasonably inferred the minor
knew of, and shared, the perpetrator’s criminal intent and aided and abetted
the commission of a robbery, rejecting the minor’s claim he was “‘simply an
“innocent, passive and unwitting bystander’†during the robbery.†(Juan
G., supra, 112 Cal.App.4th at p. 5.)
The victim had been approached by the minor and perpetrator
together. (Id. at p. 3.) When the
perpetrator demanded money from the victim at knifepoint, the minor was beside
him. The victim was afraid of being
stabbed by the perpetrator, but also felt threatened by the presence of the
minor, who was standing one foot away. (
Following the robbery, the perpetrator and the minor fled and were found
and arrested together. (
Keven contends there was
insufficient evidence of his involvement in the robbery, arguing the juvenile
court’s finding he committed the offense “was based on the erroneous assumption
that [his] presence at the gas station was sufficient evidence of his aiding
and abetting the robbery.â€
Keven’s
contention amounts to no more than a request that we reweigh the evidence and
substitute our judgment for that of the trier of fact, which is not the
function of a reviewing court. (
1138-1139, People v. Culver (1973) 10
Cal.3d 542, 548.) There was conflicting
evidence as to whether Keven aided and abetted Hill and Phillips in committing
the robbery. Gilbert’s testimony that
Keven demanded his cell phone when the youths approached and Hill began
searching his bag was neither physically impossible nor inherently improbable
in light of Keven’s proximity to Gilbert during the incident. Even if we were to assume, based on Detective
Larsen’s testimony, Keven did not share Hill’s criminal intent when he was
conversing with Phillips and the fourth youth and Hill was confronting Gilbert,
that changed once the fourth youth departed.
Immediately thereafter, Keven, Phillips and Hill approached and surrounded
Gilbert, and Hill demanded Gilbert’s wheelchair or cell phone. When Gilbert relinquished his wheelchair,
Keven placed himself in front of Gilbert as Phillips got into the wheelchai
committed second degree robbery as an aider and abettor. Unlike the minor in Juan G., Keven did more than pose as a threatening presence during
the robbery and flee with his companions following the robbery. Instead, Keven, Hill and Phillips engaged in
coordinated acts of intimidation to coerce Gilbert to surrender his
wheelchair.
3. The
Challenged Probation Condition Is Not Constitutionally Impermissible
At the disposition hearing, the juvenile court
required Keven, as a condition of probation, to attend a school program
approved by the probation officer and to enroll in college as soon as
possible. Keven was 17 years old at the
time and had graduated from high school a year early. Prior to imposing this condition, the court was
informed by Keven’s mother that Keven was considering attending El Camino
College, a community college.
Keven contends the probation condition is overbroad
because it infringes upon his right to work rather than attend college. Notwithstanding the People’s claim of
forfeiture, we find do not find the probation condition to be overbroad.
The juvenile court is empowered to impose conditions
of probation in juvenile cases and has wide discretion when formulating such
conditions. A juvenile probationer may
be therefore subject to “any and all reasonable conditions†the court “may
determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.†(Welf. & Inst. Code, § 730, subd. (b);
In deciding whether a probation condition is unconstitutionally
overbroad, the test is whether it impinges on a constitutional right and is not
carefully tailored and reasonably related to the compelling state interest of
reformation and rehabilitation. (
1152-1153.)
The probation condition that Keven attend a
probation-officer-approved school program and enroll in college is not
unconstitutionally overbroad. The
correlation between education and the rate of crime is well-known. (In re
Angel J. (1992) 9 Cal.App.4th 1096, 1100.)
Not surprisingly, “[s]chool attendance has regularly been upheld as a
condition of probation reasonably related to rehabilitation and prevention of
future criminality.†(
812, 815). Requiring Keven to attend
college is likely to increase the prospect of his receiving valuable education
and/or training, obtaining gainful employment, achieving success in society and
avoiding criminality. Nor does the
probation condition impinge on Keven’s right to work. The probation condition neither prohibits him
from working while attending college, nor requires him to attend on a full-time
basis that might preclude gainful employment. Indeed, a
probation-officer-approved school program may well consist of both college
classes and work.
However, because gaining admission to college may be
beyond Keven’s control, to uphold the condition, we interpret it to mean that
if Keven applies to attend college and is not accepted due to circumstances not
of his own making, he may not be found to be in violation of his
probation.
DISPOSITION
The order is affirmed.
ZELON,
J.
We
concur:
PERLUSS, P. J.
WOODS, J.
name="_ftn1" title="">[1]
four youths, but later recalled there were only three of them.
name="_ftn2" title="">[2]
appeal.
