In re Erica L.

Filed 5/15/07 In re Erica L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Commissioner.

Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

The court adjudged appellant, Erica L., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging her with vandalism (Pen. Code 594, subd. (a)). On August 21, 2006, the court placed Erica on probation until March 27, 2007, or until she made restitution. On appeal, Erica contends: 1) the court erred in admitting certain evidence; and 2) she was denied the effective assistance of counsel. We will affirm.

FACTS

At Ericas adjudication hearing Yesenia (Jenny) V. testified that on February 11, 2006, at around 7:00 p.m., she was at her boyfriend Victors house when she saw Erica with some friends across the street within a hundred feet of her car. Jenny knew Erica because Erica was dating Victors best friend, Angel. According to Jenny, Erica did not like her, she claimed to have dated Victor while Jenny was dating him, and she wanted Jenny to break up with Victor so she could start a relationship with him.

At approximately 7:30 p.m., one of Ericas friends approached Jenny and told her that her car had been vandalized. Jenny went to look at her car and saw that someone had used a marking pen to write You bitch on the hood and scribbled all over the car. Joshua C. testified that he did not recall telling Kerman Police Officer Irineo Guerra that Erica called him on the day the vandalism occurred and that he thought it was Ericas friend who actually called that day. Joshua further testified that although he knew who Erica was, he had never talked to her on the phone.

Officer Guerra testified that when he interviewed Joshua, he stated that on the day of the vandalism, Erica called his house and asked him to cover for her because she had marked Jennys car.

When recalled by the defense, Joshua testified that Jovanna was the person who called him that day.

Maria R. testified that she was with Erica and Jovanna on February 11, 2006, when they went to visit Angel. According to Maria, while Jenny was inside Victors house, Jovanna got some marking pens and marked Jennys car.

Erica testified that she did not mark Jennys car.

DISCUSSION

The Alleged Erroneous Admission of Evidence

Erica contends the prosecution failed to meet its burden of showing that she was the person who called Joshua because it was undisputed that Joshua was unable to identify Ericas voice over the telephone. Thus, according to Erica, the court erred when it admitted Joshuas statement to Officer Guerra implicating Erica in the vandalism. We will reject these contentions.

Evidence Code section 403, subdivision (a) provides:

The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [] . . . [] (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.

Since the prosecution proffered the statement by Joshua, it bore the burden of producing evidence establishing that Erica was the caller. (People v. Collins (1975) 44 Cal.App.3d 617, 628.) Further, the determination of an issue involving the admissibility of evidence is subject to review for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 676.)

Officer Guerra testified that on February 11, 2006, Joshua told him that Erica called Joshua that day and told him to cover for her because she had written on Jennys car. Erica does not challenge the admissibility of this statement as a prior inconsistent statement. (See People v. Sapp (2003) 31 Cal.4th 240, 296.) Further, [I]dentity of a party to a telephone conversation may be established by proof of recognition of his [or her] voice or by other evidence which satisfactorily indicates identity of the individual. [Citations.] (People v. Nails (1963) 214 Cal.App.2d 689, 692.) Here, the court could reasonably find from Joshuas statement to Officer Guerra that, notwithstanding Joshuas contrary testimony, he was familiar with Ericas voice and that he recognized her as the person who called asking Joshua to cover for her. Accordingly, we reject Ericas contention that the prosecution did not carry its burden of showing Erica was the person who called Joshua. It follows that the court did not abuse its discretion when it admitted Joshuas statement into evidence.

The Ineffective Assistance of Counsel Claim

Erica contends the prosecution presented insufficient evidence to sustain the courts finding that she committed the charged vandalism offense because Joshuas statement to Officer Guerra was inadmissible. Thus, according to Erica, her defense counsel provided ineffective representation by his failure to move for dismissal at the conclusion of the prosecutions case. We disagree.

Section 701.1 provides that a minors counsel may request, at the close of the Peoples case, that the court enter a judgment of dismissal: At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602. If such a motion at the close of evidence offered by the petitioner is not granted, the minor may offer evidence without first having reserved that right.

Courts have held that section 701.1 is substantially similar to Penal Code section 1118^[[1]] governing motions to acquit in criminal trials and that therefore the rules and procedures applicable to [Penal Code] section 1118 . . . apply with equal force to juvenile proceedings. [Citation.]

Thus, the requirement in a criminal case that on a motion for acquittal the trial court is required to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is proved beyond a reasonable doubt before [the defendant] is required to put on a defense applies equally well to motions to dismiss brought in juvenile proceedings. [Citation.] . . . (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.)

Prior inconsistent statements are admissible to prove their substance as well as to impeach the declarant. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) Here, Joshuas prior inconsistent statement was admissible to prove Erica called him. Additionally, Ericas statement to Joshua that she vandalized Jennys car was admissible for its substance as an admission by a party (Evid. Code, 1220) and as a declaration against interest (Evid. Code, 1230). Thus, Ericas admission to Joshua that she vandalized Jennys car was sufficient to sustain the courts finding that she committed the charged vandalism offense. (Cf. Evid. Code, 411 [[T]he direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact].)

In order to establish that she was denied the effective assistance of counsel Erica had to show that her defense counsels performance fell below that expected of reasonably competent counsel and that she suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)

Here, the prosecution presented sufficient evidence during its case-in-chief to sustain the courts findings based on Ericas statement to Joshua. Thus, we conclude defense counsel did not provide ineffective representation by his failure to make a motion that, if made, should have been denied. Further, Erica could not have been prejudiced by defense counsels failure to make a motion that did not have any merit. Accordingly, we also reject Ericas claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

* Before Harris, A.P.J., Cornell, J., and Dawson, J.

^[[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.