In re Larry W.
Filed 10/18/13 In re Larry W. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re LARRY W., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY W.,
Defendant and Appellant.
D062607
(Super. Ct.
No. J231960)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Michael T. Smyth and Browder A. Willis, Judges. Affirmed and remanded with directions.
Sheila
Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kimberley
A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
In this juvenile
wardship proceeding, Larry W. (Minor) appeals from a judgment finding that
he committed offenses on three different occasions, including falsely
identifying himself to an officer and two distinct instances of theft from a
person. He argues (1) there is
insufficient evidence to support the finding that he aided and abetted the
theft from one of the victims (Suzanne Cook); (2) a condition prohibiting his
unsupervised presence in downtown San Diego is unconstitutionally vague because
it does not specify the geographic boundaries of the prohibited area; and (3)
the juvenile court was required to calculate his precommitment custody credits and specify his maximum
permissible period of confinement given that he was committed to the Breaking
Cycles program.
We hold the
record supports the court's true finding on the Cook theft allegation. We remand the matter to the juvenile court
with directions to modify the judgment so that it (1) sets forth the custody
credits and maximum permissible confinement period, and (2) directs the
probation department to provide Minor a written description of the geographic
boundaries for purposes of the downtown San Diego
restriction.
FACTUAL
AND PROCEDURAL BACKGROUND
to Officer
On May 16, 2012, Officer Linda Tousley
observed Minor (age 15) walking slowly in a crosswalk and calling out to a
group of high school students, even though the light had turned red for pedestrians
in the crosswalk and he was holding up traffic.
Officer Tousley contacted Minor and told him that she was detaining him
for holding up traffic and crossing against a red light, and she was going to
issue him a citation. When she asked him
for identification, he was unable to provide any. He then gave her a false name. It took Officer Tousley about one hour to
obtain Minor's correct name; during her investigation Minor repeatedly insisted
his name was the false name.
At about 9:30 p.m. on July 18, 2012, a young male snatched a cell phone from the
hand of Suzanne Cook while she was sitting near the fountain at Horton
Plaza in downtown San
Diego. The
events surrounding the theft were described at trial by Cook and several
eyewitnesses, including a security guard (Dominique Varona) and a bystander
(Kevin Prill).
Cook
testified that while she was sitting near the fountain she noticed a group of
young males talking to her boyfriend and his friend. Because she is deaf she did not know
"what was going on," and she was "glued to [her]
phone." One of the males in the
group snatched the phone from her hand and started running away. Other males in the group were "running
with him." Cook screamed to her
boyfriend, " 'Go after them, they stole my phone.' " Cook's boyfriend and other bystanders chased
the thief and the others who were running away.
Cook lost sight of the fleeing group as they ran around a building, and
she then joined the chase.
After Cook
joined the chase, she saw her boyfriend and the fleeing group stopped at a
distance, and it looked like there was going to be a fight. When Cook arrived by the group, she grabbed
the thief by his sweatshirt and screamed at him to return her phone. As the thief struggled to get away from her,
one of the males in the group grabbed Cook's shirt, which allowed the thief to
escape. When Cook broke free she
continued her chase until the males fled into an abandoned building.
Security
guard Varona and bystander Prill saw Cook surrounded by a group of males in the
street as Cook tried to get her phone back from the thief. Cook was screaming, " 'My phone,
somebody got my phone, they got my phone.' " There was a lot of pushing, shoving and
shouting in the group. One or more of
the males was holding Cook by her clothes to prevent her from chasing another
male who was running down the street, until Cook was able to break free and run
after the person. During this
altercation, Prill heard a male (who was not holding a phone in his hands and
who was not the male running down the street) saying " 'I got the phone
right here.' "
Cook
testified that the person who grabbed her phone, and who she grabbed in the
group of males in the street, was wearing a gray sweatshirt and gym shorts. Prill saw a male wearing a black sweatshirt
and shorts running away from the group of males as Cook was being held back by
the group in the street. Prill testified
that he got a good look at the running male's face. When a detective later showed Prill a
photograph of a suspect (Demoree Branch), Prill identified Branch as the male
running away from the group.
The
witnesses also described several other males who were present during the
incident. Cook said there were other
males running with the thief, but she could not accurately identify them
because her attention was focused on the thief in the gray sweatshirt; it was
dark; she was distressed; there were a lot of people there; and "everyone
just ran different places." She did
notice a male in an orange shirt and a noticeably short male among the group of
males who looked like they were going to start a fight with her boyfriend. Varona saw a male wearing an orange shirt
running away from the group of males who were holding Cook back in the street, and
when Cook broke free from the group Varona thought Cook was chasing the man in
the orange shirt.
The
prosecution presented evidence to support its theory that Minor participated in
the theft along with several other males, including Branch, Calfred Moore, and
Markeice Brown. As we shall delineate,
this evidence included testimony showing that Cook saw Minor running from the
scene with the thief; security guard Varona recognized Minor as the male
wearing the orange shirt running away from the group of males holding Cook; and
Minor switched shirts with Moore so that when the police arrested Minor he was
no longer wearing the orange shirt.
When the
police arrived at the scene of the offense, Varona told them that he saw a male
running from the area, and described the male as short (about five feet, four
inches tall), wearing black pants and a bright orange shirt, and with a
two-inch short "Afro." About
one-half hour after the offense, the police found and detained Moore and Minor
at a trolley station several blocks from the scene of the offense. Moore, who was the first suspect contacted by
the police, was breathing and sweating heavily and wearing an orange
shirt. Minor was detained in a different
area of the trolley station by another officer after a trolley patron pointed
Minor out to the police. Minor was
wearing faded black jeans and a white tank top or a grayish, off-white
t-shirt. While Moore
was being detained, he continually looked over his shoulder in the direction of
Minor.
The police
conducted a curbside lineup with Minor, Moore, and Brown.[1] When Minor appeared before victim Cook at the
lineup, Cook said, " 'He didn't steal the phone, but he ran with' "
the person who stole it.[2] When Minor appeared before security guard
Varona at the curbside lineup, Varona told the police, " 'That's him. He had an orange shirt on, the shirt was
baggy. I recognize him. He's always down here.' "[3] Varona explained that on several occasions he
had seen Minor "hang[ing] out" with his friends in the downtown
area. When Varona viewed Moore
at the lineup, Varona told the police that Moore
was wearing the shirt that Minor was wearing at the time of the incident. With respect to the third suspect (Brown),
Varona told the police that Brown's hat and the design on his shirt matched the
clothing worn by one of the males who was holding Cook back from continuing her
chase to retrieve her phone.
After Minor
waived his Miranda rights at the
police station, he told Detective Eric Pollom that a group of males, including
himself, Brown, Moore, and Branch,
were near the Horton Plaza
fountain area smoking spice (a synthetic form of marijuana). Branch grabbed Cook's cell phone and ran
away, and Cook chased him and caught him.
Minor went to the area and saw a group fighting in the street, but he
did not join in the fight. At one point
the police left Minor, Brown, and Moore together, without any officers, in an
interview room equipped with audio and video recording equipment. The recording depicts Minor making a statement
that appeared to be about switching shirts.[4]
At about 5:00 p.m. on July 26, 2012, Jacob Duran, while standing at a bus stop
in downtown San Diego, was
listening to music and texting on his cell phone. A man approached him and asked if he could
use his phone; Duran responded he was texting someone and could not lend him
the phone. The man asked a few other
people around the bus stop if he could use their phones. The man then joined Minor and about four or
five other males who were nearby "hanging out" and smoking
marijuana. The man returned to Duran and
again asked if he could use his phone.
When Duran said no, the male "invaded [Duran's] personal
space," coming within inches of Duran's phone to look at it while Duran
was talking to a friend on the phone.
The man continued asking to use Duran's phone, and then (apparently to
distract Duran) started asking him "stupid questions" about a bicycle
that another individual had near the bus stop.
The man then snatched the phone out of Duran's hand and started running
away.
Minor
started running with the thief, and Duran heard Minor saying, " 'You got
it, you got it. Keep going, keep going.'
" Duran started chasing them but
lost sight of them by the mall at Horton
Plaza.
When the
police arrived, Duran saw Minor walking at Horton
Plaza. Duran told the police that Minor was one of
the males who " 'took off with the guy that took [his]
phone.' " When the police took
Minor into custody, he spontaneously said to the officer, " 'I didn't take
anything. What are you going to charge
me with, being with someone that stole a phone
This is two times for this shit with no evidence.' "
Minor testified on his own
behalf. Regarding the Cook theft, Minor
said he did not hear anyone in his group talking about taking the phone;
"out of nowhere" Branch snatched the phone; he did not know Branch
was going to do this; he did not help steal the phone; he did not run from the
scene with Branch; he watched but did not participate in the altercation in the
middle of the street; and Moore was the person who held Cook back and pretended
he had the phone to help Branch get away.
Minor said that when Branch broke free and started running in Minor's
direction, Minor ran away so he would not be near Branch and get in trouble for
something he did not do. He claimed he
never wore an orange shirt, and denied that he switched shirts with
anyone. He testified that while being
recorded in the police station interview room he said in a low voice, " 'I
know we didn't switch off.' "[5]
Minor also
denied that he assisted with the theft of Duran's phone. He testified that while he was waiting by the
bus stop with his "play auntie" and her two young children, his
"play auntie" commented that somebody was snatching a phone. Minor did not see the thief snatch the phone
but saw the thief running from the scene.
Minor claimed he was not "hanging out" with the thief and was
not trying to help him; he did not run away with the thief; and he did not make
a statement encouraging the thief to run away with the phone. As Minor was walking to the mall, Duran
identified him to the police. Minor
testified that when he made the comment to the police about being charged for
being with someone who stole a phone, he was referring only to the Cook theft,
not the Duran theft.
In its
petition to declare Minor a ward of the court (Welf. & Inst. Code,[6] §
602), the People charged Minor with grand theft from a person (count 1, victim
Duran, July 26 incident); robbery and grand theft from a person (counts 2 and
3, victim Cook, July 18 incident); and falsely identifying oneself and
providing false information to an officer (misdemeanor counts 4 and 5, May 16
incident).
At the
jurisdiction hearing, the court found true the allegations of theft and false
representations and information to an officer, but dismissed the robbery
allegation. Regarding the theft
offenses, the court found the males involved in the thefts had the intent and
common plan to "hang out, get close, snatch a phone, run," and the
males (including Minor) were serving as a distraction and a "muscle"
for each other even if they were not the one grabbing the phone. With respect to Minor's participation in the
Cook theft, the court credited security guard Varona's statement to the police
at the curbside lineup that Minor was involved in this theft, and discredited
Varona's trial testimony that he did not know if Minor was involved (see fn. 3,
ante).
At the
disposition hearing, the court declared Minor a ward of the court; ordered that
he be committed to the Breaking Cycles program for a period not to exceed 150
days; and placed him on home supervision with his mother pending an assessment
by the Breaking Cycles program.
DISCUSSION
I. Sufficiency
of Evidence of Theft from Cook
Minor
argues there is insufficient evidence to support the true finding that he aided
and abetted the theft from Cook. He
asserts the record does not show that he knew about the actual perpetrator's
plan to take the phone, nor that he intended to, and did, assist in the taking
of the phone.
A person is
liable as an aider and abettor when he or she has knowledge of the
perpetrator's unlawful purpose, intends to commit or encourage the offense, and
by act or advice aids or encourages commission of the offense. (People
v. Campbell (1994) 25 Cal.App.4th 402, 409.) Presence at the scene of the crime is not
alone enough to establish aider and abettor status; however, it is a factor
that may be considered, along with companionship with the perpetrator and
conduct before and after the crime. (
The requisite conduct occurs if the person in any way, directly or
indirectly, aids or encourages the perpetrator by acts, words or gestures. (Id.
at p. 411.) As to intent, the person's
knowledge of the criminal purpose and failure to prevent the crime is not
sufficient to show aiding and abetting; rather, the defendant must share the
perpetrator's criminal purpose. (
Cal.3d 1195, 1227.) "Intent is
rarely susceptible of direct proof and usually must be inferred from the facts
and circumstances surrounding the offense." (People
v. Pre (2004) 117 Cal.App.4th 413, 420.)
When reviewing a challenge to the
sufficiency of the evidence, we review the whole record in the light most
favorable to the judgment to determine whether there is substantial evidence
from which a reasonable trier of fact could find the allegations true beyond a
reasonable doubt. (In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) We presume in support of the judgment the
existence of every fact the trier of fact could reasonably deduce from the
evidence. (Id. at p. 995.) It is the
exclusive province of the trier of fact to determine credibility and to resolve
evidentiary conflicts and inconsistencies in testimony. (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
A trier of fact "may believe and accept as true only part of a
witness's testimony and disregard the rest." (In re
Daniel G. (2004) 120 Cal.App.4th 824, 830.)
If the circumstances reasonably support the trier of fact's findings,
reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding.
(In re Cesar V., supra, 192
Cal.App.4th at p. 995.)
Drawing all
reasonable inferences in favor of the judgment, the record supports that the
theft from Cook involved a group effort by several males, not simply by the
male who actually grabbed Cook's phone, and that Minor was one of the males who
participated in this group effort. Cook
described a group of young males conversing with her boyfriend, the snatching
of her phone by one of the males, the flight of several males, and her pursuit
of the thief until she was temporarily held back by one of the males in the
group. Similarly, Varona and Prill
described a group of males surrounding Cook, with one or more of them briefly
preventing Cook from continuing her chase of the thief. Prill testified that during this melee, one
of the males in the group said he had the phone although it appeared he did not
in fact have it. When testifying at
trial, Minor acknowledged that one of his companions helped the thief by
holding Cook back and pretending to have the phone.
As to the
identity of the thief and his accomplices, Minor admitted that he, Moore,
Brown, and Branch were together when Cook's phone was stolen, and Minor said
Branch was the person who grabbed the phone.
Cook testified that her phone was grabbed by a male in a gray sweatshirt
and shorts; Prill saw a similarly dressed male (wearing a black sweatshirt and
shorts) running from the group of males; and Prill later identified that male
as Branch. At the curbside lineup Varona
identified Brown as the male holding Cook back from her chase, whereas Minor
identified Moore as the male who engaged in this conduct. At the curbside lineup Cook identified Minor
as one of the males running with the thief, and Varona identified Minor as the
short male in the orange shirt running from the group surrounding Cook in the
street. There was evidence showing that
Minor and Moore ran from the scene to the trolley station, and that Minor
switched shirts with Moore so that Moore was wearing the orange shirt when the
police detained Minor and Moore at the trolley station.
Considering
all these circumstances together, they support a finding that the theft
involved the combined efforts of a group of young males, including one male
grabbing the phone; another male trying to distract the victim from her efforts
to retrieve her phone by pretending he had the phone; and one or more of the
males impeding the victim's apprehension of the thief by holding on to her
clothing. Further, the evidence supports
that Minor knowingly and intentionally participated in this group effort, based
on such factors as his companionship with the actual perpetrator and presence
at the time of the theft; his flight with the actual perpetrator immediately
after the theft; his presence during the group altercation and his flight from
that group to the trolley station; and his decision to switch shirts with a
companion which could evince a consciousness of guilt and an attempt to save
himself from detection.
Additionally,
the court was entitled to rely on the evidence associated with the theft
against Duran, which supported that Minor had the intent and common plan to
assist in the cell phone theft from Cook.
A trier of fact may properly consider another instance of misconduct if
it was sufficiently similar to support a rational inference that the defendant
probably harbored the same intent or plan in both instances. (People
v. Cole (2004) 33 Cal.4th 1158, 1194; People
v. Catlin (2001) 26 Cal.4th 81,
111, 153.) Both the Cook and Duran
thefts were committed in downtown San Diego at or close to Horton Plaza, and
the offenses involved the common modus operandi of a group of males
"hanging out" and smoking spice or marijuana; one of the males in the
group suddenly snatching a cell phone from a third party's hand; and the thief
taking flight along with one or more additional males from the group joining
the flight and engaging in words or conduct that encouraged the theft. The Duran and Cook thefts were sufficiently
similar to support a rational inference that Minor was not simply an innocent
bystander during theses offenses but rather had the same intent and plan to
steal a cell phone on both occasions.
The record
supports the court's finding that Minor aided and abetted the theft from Cook.
II. Failure
To Specify Boundaries for Downtown San Diego
One of the
provisions in the trial court's dispositional order is "The Minor shall
not be in downtown San Diego unless supervised by his mother." (Capitalization omitted.) Minor asserts the condition is
unconstitutionally vague because the term "downtown San Diego" is not
defined by concrete guidelines (such as street boundaries) to govern
enforcement by the probation officer and to give notice to Minor about when he
is in violation. He contends there are
no agreed-upon boundaries for the area of downtown San Diego, and requests that
the case be remanded to the trial court to establish " 'descriptive
or mapped boundaries' " for the area.
Without
deciding the Attorney General's contention of forfeiture or reaching the
constitutional vagueness issue on the merits, we adopt the Attorney General's
suggestion that the probation department be directed to provide Minor with the
geographical boundaries for downtown San Diego for purposes of this
restriction. (See In re Victor L. (2010) 182 Cal.App.4th 902, 917-918.) We shall direct that the judgment be modified
to include this requirement.
III. Custody
Credits and Maximum Permissible Confinement
Minor
argues the trial court erred by failing to calculate his precommitment custody
credits and to specify his maximum permissible period of confinement. The Attorney General asserts this was not
required because Minor was not removed from the physical custody of his parents
but was released to his mother.
At the
disposition hearing, the court ordered that Minor be taken into custody under
section 726 and committed to the Breaking Cycles program for a period not to
exceed 150 days. However, the court
granted a defense request to allow Minor to be assessed for the Breaking Cycles
program outside of custody because he had already served a 46-day period of
custody at juvenile hall. The court
explained to Minor that under the Breaking Cycles program, the probation
department has the discretion to send Minor to juvenile hall "tomorrow or
next week" if the assessment team deems this appropriate. Pending the Breaking Cycles assessment
decision, the court placed Minor on 30 days of home supervision with his
mother.
We agree
with Minor that the trial court should set forth in its dispositional order his
precommitment custody credits and maximum permissible confinement period. A minor is entitled to credit against his or
her maximum term of confinement for the time spent in custody before the
disposition hearing. (
1058, 1067.) Further, if the minor is
removed from the physical custody of his or her parent or guardian, the court
is required to specify the maximum period of confinement permitted for the
offenses if they were tried as adult offenses.
(§ 726, subd. (d); Cal. Rules of Court, rule 5.795(b); see
497.) Physical confinement includes
placement in a juvenile hall or camp. (§
726, subd. (d).)
In its
dispositional ruling, the trial court stated that "custody is taken
pursuant to Welfare and Institutions Code section 726," and that Minor was
committed to the Breaking Cycles program for a maximum of 150 days. Although the court released Minor to the
custody of his mother under home supervision pending the Breaking Cycles
assessment, it is apparent from the court's ruling that he could be placed
involvement depending on the results of the Breaking Cycles
assessment. This is not a case where a
minor is released to parental custody with no provision for physical
confinement absent another court hearing.
(See, e.g., In re Ali A.
(2006) 139 Cal.App.4th 569, 572-573 [court's duty to specify maximum
confinement term is not operative when minor is placed on probation and not
removed from physical custody of parents]; In
re Matthew A. (2008) 165 Cal.App.4th 537, 541 [same].) Given that the court's ruling contemplates
the possibility of nonparental physical confinement without further court
order, the judgment should reference the amount of precommitment custody
credits and maximum permissible confinement period.[7]
DISPOSITION
The juvenile court shall modify the judgment to include
(1) an order directing the probation department to notify Minor in writing of
the geographic boundaries of downtown San Diego for purposes of Minor's
compliance with the terms of his release; (2) a calculation of Minor's
precommitment custody credits; and (3) and specification of Minor's maximum
permissible period of confinement. In
all other respects, the judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
[1] By this time the police had apparently also detained Brown.
[2] At trial, Cook was unable to identify Minor as one of the
males running with the thief. She
testified that Minor was similar in height to the short male she saw at the
scene of the street altercation; however, she was not certain that Minor was
the short male. She recognized, however,
that her memory at the time of the incident was better than at the time of
trial. Also, she was not certain whether
the short male was involved in the offense.
She testified she first saw the short male at the street altercation;
she did not know if the short male was a participant in the theft or a bystander;
she ran past the short male as she chased the thief; and the short male was not
running with the thief as she continued to chase him.
