In re Rafael S.

 

 

 

 

 

Filed 1/9/14  In re Rafael S. CA5

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 RAFAEL S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,   Plaintiff and Respondent,                         v. RAFAEL S.,   Defendant and Appellant.	F067280   (Super. Ct. No. JJD065389)     >OPINION

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL
from a judgment of the Superior Court of
Tulare 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, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys
General, for Plaintiff and Respondent.

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            At
a contested jurisdiction hearing, the juvenile
court found true allegations that appellant, Rafael S., a minor, committed
second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and that in doing
so he personally used a deadly and dangerous weapon, viz., a knife (Pen. Code,
§ 12022, subd. (b)(1)).  At the
subsequent disposition hearing, the juvenile court continued appellant as a ward
of the court and ordered him committed to the href="http://www.mcmillanlaw.us/">Tulare County href="http://www.sandiegohealthdirectory.com/">Correctional Center Unit for
a period of 240 to 365 days.  

            On
appeal, appellant’s sole contention is that the evidence was insufficient to
support the instant adjudication.  We
affirm.

FACTS

Jurisdiction Hearing Testimony

            Richard
Z. (Richard), age 15, testified that on January 18, 2013, he was walking home
from school when two males approached him.href="#_ftn2" name="_ftnref2" title="">^[1]  One of them, who Richard identified at the
jurisdiction hearing as appellant, pressed a pocket knife against Richard’s
stomach and demanded that Richard give him “everything [he] had.”  Richard “g[a]ve him [his] property.”   

            Richard
did not know appellant and the other person, but he had seen them before.  “[T]hey were bugging [Richard] for the last
two months, asking [him] if [he] banged a certain color.”   

            On
January 22, 2013, Richard was called to the principal’s office at his school
“to look at pictures and give a statement about what happened.”  He was shown photographs, but he determined
the person who robbed him was not among those whose photographs he was shown.  â€œA couple of hours later,” Richard went back to
the principal’s office, looked at more photographs, and saw a photograph of the
person who robbed him.  At that point,
Richard asked the police officer on campus, Officer Jones, if he (Richard)
could “have some time” so he could “see that person one more time to be
certain.”  Richard “wanted more time to
see a face, to see his face in public and be sure of it.”  Richard was “able to do that,” and he “told
[the officer] it was him.”   

            On
cross-examination, Richard reiterated he was approached by two people but he
admitted he “remember[ed] telling [someone] else that there may have been more
people there[.]”  Richard has “a disease”
called “Bipolar” that “makes [him] hallucinate and hear things that other
people cannot hear or see.”  He
testified, “I think that was the cause” of his previously stating there were
more than two people at the scene.  On
redirect examination, Richard was asked if his in-court identification of
appellant as the person who robbed him was “real” or “something [his] mind made
up,”  Richard answered, “No that was
real.”   

            Richard
provided a description of the robber and the other person who approached him to
an investigating police officer.  The
robber was “bald” and was wearing a white shirt, black shorts and black
shoes.  The robber’s companion “was also
wearing black” and “his hair was almost a high-end, tight with a flat top.”  

            Visalia
Police Officer Matt Jones testified to the following:  He was on duty on January 22, 2013, as a youth
services officer at Golden West High School when a student advised him he had
been robbed at knife-point.  The student
stated he had viewed some photographs but was unable to “recognize
anyone.”  Later that day, the student
told the officer he had previously seen the person who robbed him on campus,
but he “wasn’t totally sure” and “wanted to see them again.”  Officer Jones conducted a search of
appellant’s house, but did not find any of the property taken from Richard.   

            Frank
D. (Frank) testified to the following: 
He attends Charter Alternative Academy. 
On January 18, 2013, Frank had a knife with him “at school,” appellant
was also “at school,” and Frank gave the knife to appellant.  When asked how he gave the knife to appellant,
Frank replied that “at lunch,” while there were “a lot of other people there,”
he “put the knife on the lunch table.” 
He did not see “what happened to the knife” after he put it on the
table.  At his school, Frank is required
to stay on campus “during lunch.”  

Additional Background

            At
a hearing prior to the jurisdiction hearing, appellant’s counsel told the court
the following:  According to the police
report, the two persons who accosted Richard ran off, but appellant “has a
breathing problem,” as a result of which “[h]e can’t run.”  In addition, at the time of the instant
offense, appellant was on the electronic monitoring program and although the
monitor was not working, appellant was not aware of that.  

DISCUSSION

            There
is no dispute the evidence was sufficient to establish someone robbed
Richard.  Appellant’s claim on appeal is
that the evidence was insufficient to establish he was the robber.

Legal Background

In determining
whether the evidence is sufficient to support a finding in a juvenile court
proceeding, the reviewing court is bound by the same principles as to the
sufficiency and substantiality of the evidence which govern the review of
criminal convictions generally.  (>In re Roderick P. (1972) 7 Cal.3d 801,
809.)  Those principles include the
following:  â€œ[I]n reviewing the sufficiency of
the evidence to support a conviction,” we determine “‘whether from the
evidence, including all reasonable inferences to be drawn therefrom, there is
any substantial evidence of the existence of each element of the offense
charged.’  [Citations.]”  (People
v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)  Substantial evidence is that evidence which
is “reasonable, credible, and of solid value.” 
(People v. Johnson (1980) 26 Cal.3d 557, 578.)  â€œâ€˜[W]hile substantial
evidence may consist of inferences,
such inferences must be “a product of logic and reason”
and “must rest on the evidence” [citation]; inferences that
are the result of mere speculation or conjecture cannot support a finding
[citations].’”  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics
omitted.)  â€œEvidence which merely raises a strong
suspicion of the defendant’s guilt is not sufficient to support a
conviction.”  (People v. Redmond (1969) 71 Cal.2d 745, 755.)

An appellate court must “presume[]
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.”  (People v. Kraft (2000) 23 Cal.4th 978, 1053.)  “[A] reviewing
court resolves neither credibility issues nor evidentiary conflicts.  [Citation.] 
Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact. 
[Citation.]  Moreover, unless the
testimony is physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.”  (People
v. Young (2005) 34 Cal.4th 1149, 1181.) 
These principles are applicable regardless of whether the prosecution
relies primarily on direct or on circumstantial evidence.  (People
v. Lenart (2004) 32 Cal.4th 1107, 1125.) 


Analysis

            Appellant bases
his challenge to the sufficiency of the evidence supporting his adjudication
chiefly on People
v. Carvalho (1952) 112 Cal.App.2d 482 (>Carvalho).  In that case, the appellate court reversed
the defendant’s conviction of kidnapping his estranged wife while armed.  (Id.
at p. 493.)  Although the alleged victim
testified she was in fear of the defendant, the court noted that “[n]either
during the time the complainant was with appellant nor in the month thereafter
did her actions and conduct reflect any fear of him.”  (Id.
at p. 490.)  The complainant had numerous
opportunities to leave, but chose not to.  And she testified that while she was with the
defendant at his rooming house, purportedly against her will, they “commenced
‘making love,’ which was consummated by an act of sexual intercourse between
them.  [Then,] he went down the hall to
the bathroom while the prosecutrix remained in the bedroom where the weapon was
allegedly reposing on the dresser or in a drawer, and she waited for him to
return. Appellant then shaved, removed his clothing and proceeded to take a
bath.  With all this opportunity to leave
she proceeded into the bathroom and washed his back, neck and arms for him.”  (Ibid.)
 Later, the couple went to a café, and
“[w]hile enroute to dinner she stopped her automobile, alighted therefrom, went
into a public telephone booth and called her son.  She did not advise her son of her claimed
predicament, nor did she telephone the police.  [¶]  When
appellant finally left her, saying he would take a streetcar to his home, she
made no complaint to the police.”  (>Ibid.)  The Carvalho
court held that “the verdict rendered” was not “‘reasonably’ justified by the
facts and circumstances disclosed by the evidence” because the complainant’s
testimony was “putting it mildly,” “fantastic.” 
(Id. at p. 489.)  “[T]he circumstances testified to by the
complainant are more than unusual.  They do
violence to reason, challenge credulity, and in the light of human experience,
emasculate every known propensity and passion of people under the conditions
testified to by the prosecutrix.”  (>Ibid.) 
 

It appears that
appellant likens the instant case to Carvalho
in four respects.  First, he asserts that
Frank could not have even been at Golden West High School at lunch on the day
of the robbery because he was not allowed to leave his own school at lunch
time, and therefore Frank’s testimony that he made a knife available to
appellant provides no support for the prosecution case.  We disagree. 
The proposition that a high school student could and would sneak off
campus hardly presents a “challenge to credulity” (Carvalho, supra, 112
Cal.App.2d at p. 489) on the order of that presented by the testimony of the complainant
in Carvalho.

Second, appellant
argues it is similarly “unbelievable” that he, believing his movements were
being electronically monitored, would have committed a crime.  There was however, no evidence adduced at the
hearing regarding appellant’s participation in, or beliefs about, the
electronic monitoring program, and our review of the instant adjudication is limited to
evidence before the court at the jurisdiction hearing.  Therefore this point cannot be considered on
appeal.  (Cf. >In re J.N. (2010) 181 Cal.App.4th 1010,
1022 [in juvenile dependency proceedings “‘Proof … must be adduced to support a
finding that the minor is a person described by Section 300’ >at the jurisdiction hearing” (italics
added)]; People v. Fiscalini (1991)
228 Cal.App.3d 1639, 1644, fn. 5 [review of denial of Penal Code section 1538.5
suppression motion is limited to evidence before the court at the suppression
motion hearing].)  But even assuming for
the sake of argument that we may view the record as containing evidence that
appellant thought he was being electronically monitored, Carvalho is nonetheless distinguishable.  Unfortunately, spectacularly bad judgment
does not run counter to human nature, as did the claimed conduct of the
complaining witness in Carvalho. 

Third, appellant
suggests it is impossible that he committed the instant offense because it is
undisputed the robber “took off” after the robbery, and appellant suffers from
breathing problems that render him unable to run and therefore, Richard’s
testimony, like the testimony of the complaining witness in >Carvalho, cannot constitute substantial
evidence.  However, there was no evidence
adduced at the hearing regarding appellant’s physical limitations and/or his
ability to run and therefore, as with the contention discussed above, this
point also may not be considered on appeal. 
And in any event, assuming for the sake of argument that appellant did
present evidence on this point, appellant’s argument is based on a false
premise, viz., that the person who robbed him ran away.  As indicated above,
Richard did not testify that appellant ran away, only that he “took off,” i.e.,
left the scene. 

Fourth,
appellant argues the instant case “bears [a] resemblance[]” to >Carvalho because, he asserts, the
following factors render Richard’s identification of appellant as the robber “weak
and unreliable”:  (1) Richard suffers
from a mental disorder that causes him to hallucinate, and (2) even after
seeing a photograph of appellant in the principal’s office a few days after the
robbery, he “was a little unsure of his assailant’s identity and wanted to see
appellant in person before making the identification.”  

These factors, however, do no
more than militate in favor of a conclusion contrary to
that reached by the juvenile court.  They
do not compel a contrary finding. 
Notwithstanding that Richard had, on occasions, experienced
hallucinations and that he needed additional time to be sure of his
identification of appellant from a photograph, it cannot be said that it was
physically impossible or inherently improbable that, as Richard testified,
appellant robbed him.  Appellant’s
argument, in essence, asks us to reweigh the evidence, and this we cannot, and
will not do.  As indicated above, we
resolve conflicts in the evidence, and the inferences drawn from the evidence,
in favor of the judgment, and the testimony of a single witness is sufficient
to establish guilt unless such testimony is physically impossible or inherently
improbable.  Richard’s identification of
appellant was neither. 

Finally,
appellant argues that the following factors support his position:  (1) Although Richard provided a
description of the robber and the robber’s companion, the prosecution did not
offer evidence of what appellant was wearing on the day of the robbery or the
color of his hair, and (2) no knife was found in appellant’s possession or in
his residence.  But these factors too, at
most, support an inference contrary to the conclusion reached by the juvenile
court and, under the principles of judicial review summarized above, we resolve
such conflicts in favor of the judgment. 
On this record substantial evidence supports the instant
adjudication.  Therefore, appellant’s
challenge to the sufficiency of the evidence supporting that adjudication
fails.

DISPOSITION

            The judgment is affirmed.