In re Efren S.
Filed 8/18/08 In re Efren S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re EFREN S., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. EFREN S., Defendant and Appellant. | A118028 (Sonoma County Super. Ct. No. 32426) |
Following a contested jurisdictional hearing, the County of Sonoma juvenile court found that appellant Efren S. committed an act of vandalism (count 2) and attempted to dissuade a witness in furtherance of a conspiracy and by use of force (counts 3 and 6, respectively). On appeal, appellant alleges three errors: (1) the sustained counts of attempting to dissuade a witness were unsupported by substantial evidence; (2) the juvenile court and prosecutor improperly shifted the burden of proof to the defense; and (3) the prosecutor committed misconduct.
For the reasons set forth below, we agree that the witness intimidation findings were unsupported by substantial evidence, but we reject appellants remaining arguments as meritless. Accordingly, we reverse the juvenile courts findings on counts 3 and 6, and affirm on count 2.
I. Background
On January 2, 2007, the District Attorney of the County of Sonoma filed a subsequent juvenile wardship petition pursuant to Welfare and Institutions Code section 602 alleging four felony offenses against then 15-year-old appellant: false imprisonment of Kristen Brewer (count one, Pen. Code, 236)[1]; vandalism of a Cadillac belonging to John Cast (count two, 594, subd. (a))[2]; and attempting to dissuade a witness in furtherance of a conspiracy (counts three and four, 136.1, subd. (c)(2)).[3]
On January 22, 2007, the petition was amended to allege three additional offenses: attempting to dissuade a witness by use of force (count five as to Brewer and count six as to Cast, 136.1, subd. (c)(1)), and assault upon Brewer with a deadly weapon by means of force likely to produce great bodily injury (count seven, 245, subd. (a)(1)).
A contested hearing began on February 9, 2007 and proceeded intermittently throughout February and into March.[4] On March 7, 2007, after the prosecutor rested, defense counsel moved for dismissal of all charges pursuant to Welfare and Institutions Code section 701.1. The court granted the motion as to count 1 but denied it as to counts 2 through 7. Testimony then resumed, again continuing intermittently until March 16, 2006.
At the conclusion of the jurisdictional hearing on March 20, 2007, the court sustained counts 2 (vandalism), 3 (attempting to dissuade Cast from testifying as a witness in furtherance of a conspiracy), and 6 (attempting to dissuade Cast from testifying as a witness by means of force).
At the dispositional hearing, the court reduced the vandalism charge to a misdemeanor in light of the de minimis nature of the damage. The court also granted a defense motion to stay punishment on counts 2 and 3 pursuant to section 654. Appellant was then retained as a ward of the court and ordered to successfully complete the Hanna Boys Center program.[5]
This timely appeal followed.
II. Evidence At The Contested Hearing
A. Prosecutors Case
i. Vandalism Incident of August 30/31, 2006
Late on the night of August 30 or early morning of August 31, 2006 in Healdsburg, the windows of the Casts white Cadillac were smashed by individuals in a brownish Jeep Cherokee who were throwing beer bottles at vehicles. Healdsburg police officer Joe Farmer responded to the Cast house to take a vandalism report. At some point, Jaime Gonzalez was identified as one of the occupants of the Jeep Cherokee.
ii. Vandalism Incident of September 7, 2006
Just after midnight on September 7, 2006, Cast was at home sleeping when his neighbor, Joaquin Kino Novella, knocked on the door and told him to go outside because his car was all messed up. Discovering that his Cadillac had four broken windows and two slashed tires, Cast called the police.
Officer Farmer responded to the Cast house where he found the same Cadillac, again with broken widows but this time with two slashed tires as well. It appeared to Farmer that the rear window had been hit by a golf club while the front window had been hit by a blunt force object.
Healdsburg police officer Joseph Lozinto was on patrol that evening. After learning that Farmer had been dispatched to a vandalism call involving a broken car window, Lozinto had a hunch that the incident might be related to the vandalism of the Casts Cadillac the week before. As he drove towards the north end of Healdsburg, he spotted a Jeep Cherokee that matched the description from the prior weeks incident.
The Jeep was stopped at a red light so Lozinto pulled up next to it and had a brief conversation with the passenger, Jaime Gonzalez, whom he recognized from a prior encounter. Lozinto decided to follow the car until he received an update from Officer Farmer with any other information on the vehicle or suspects involved in that nights vandalism incident. As he was following the Jeep, he requested from dispatch the license plate number of the suspect vehicle from the incident the week before. It matched the plate on the Jeep he was following, confirming his suspicion that it was the same perpetrators involved in both incidents. Lozinto initiated a traffic stop.
As Lozinto was talking to the driver, identified as Roberto Castro, and Gonzales, he noticed two people crouching in the back seat, kind of slouched down in the car in the back seats, so, as if they were trying to avoid being seen. The rear passengers identified themselves as Oscar, appellants brother, and Carlos B. (Carlos).[6]
In the rear cargo area of the Jeep, Lozinto spotted a baseball bat wrapped in black tape with little pieces of broken glass embedded in the tape. There was also a golf club on the floor of the rear passenger area and a knife on the floor between the front passenger seat and door. Lozinto collected the items as evidence and impounded the car. Because they were minors, Oscar and Carlos were transported to the police station for their parents to pick them up, while Castro and Gonzalez, both adults, were released at the scene.
After learning that Lozinto had detained four individuals as suspects in that evenings vandalism incident, Farmer prepared a police report recommending that charges be filed against all them.
iii. Vandalism Incident of December 28, 2006
Shortly after 4:00 p.m. on the afternoon of December 28, 2006, John Cast drove his Cadillac to pick up his girlfriend, Kristen Brewer, from work.[7] He then drove to his house, parking directly in front of Healdsburg Junior High which was across the street from his house. After parking, they stayed in the car for a few minutes while they finished a conversation. As they sat there, Cast noticed a silver Honda drive by slowly and then park two cars ahead of them. Although he did not recognize the car, he was concerned because the occupants were staring at them.
Appellant, Oscar, and a friend named Cesar B. (Cesar), who was the older brother of Carlos B., then exited the Honda and approached the Cadillac, [t]alking shit and yelling . . . angry things while Cast and Brewer were still sitting inside. Cast had seen Cesar before and knew his brother, Carlos, from a long time ago when he and some friends ran up on Cast.
Appellant and Oscar walked up to the passenger side of the Cadillac while Cesar stayed towards the front on the drivers side. Appellant then pulled a bat out from the back of his pants and struck the passenger window with it multiple times. Brewer, who was sitting in the front passenger seat, described the bat as a small bat, maybe regular sized, while Cast described it as an aluminum T‑ball bat or little kids bat. While appellant was hitting the window, Oscar and Cesar were flashing gang tattoos and yelling Spanish gang words like su trece. At some point, one of them mentioned Casts brothers name. Appellant, who was standing about four inches away from the car, was striking the window with the bat at full strength but, surprisingly, the window did not break.
As soon as appellant stopped hitting the window, Cast got out of the car and told Brewer to do the same. As Brewer described it, she initially remained in the car because she was afraid something might happen if she got out, since appellant and Oscar were still standing right next to the car. About 20 seconds later, however, she just went for it. After she was out of the car, she yelled at them, I know your face. I know your face. Im not afraid to tell. One of them responded, I dont care. She was scared so she picked up and threw an empty plastic bottle, although it did not hit anyone. She then ran around the back of the car, across the street, and up the front path into Casts house with Cast following a foot or two behind her. Once she was almost in the house, she heard something, a loud noise that could have been glass, but could have not been.
As they were running from the car up the path into Casts house, Novella, Casts neighbor, came out to the front of his house with a telephone in his hand, yelling that he was calling the police. As Novella described it, he had been working in his backyard when he heard screaming and foul language out in the front of his house. When he ran out to the street, Cast and Brewer were running down Casts pathway next door. Brewer looked scared, while Cast looked scared and angry. He saw appellant, Oscar, and Cesar getting back into their car so he dialed 911, reporting the incident and relating the Hondas license plate number.
Novella testified that when he saw Cast running up the pathway, Cast did not have anything in his hands. Novella never heard the sound of breaking glass nor did he see any broken glass. He did not recall telling the police or the 911 operator that he heard a window breaking. Novella admitted he had a prior felony conviction for a drug offense.
Brewer testified that she never saw anything in Casts hands, did not see him hit the back window of the Honda, and never saw him or anyone else swing a golf club. Likewise, Cast denied having a golf club or any kind of weapon at any point during the confrontation, and he never saw anyone other than appellant swing anything. As he was running down the pathway to his house, he never heard anything that sounded like breaking glass, although other people later told him they heard something. Cast denied that he went anywhere near the Honda or that he broke the Hondas window.
Returning to the afternoon of December 28, 2006, Healdsburg police officer Allison Hurley was patrolling in the general vicinity of Healdsburg Junior High when she heard the dispatch report of a fight in progress in front of the school. As she was driving to the school, she saw a gray Honda Civic driving away from the location of the fight that matched dispatchs description of a possible suspect vehicle. There were three occupants in the car, and the cars rear window was broken out. Hurley made a U-turn but before she could turn on her lights and sirens, the Honda pulled over to the side of the road.
While the occupants were all still seated in the car, the driver identified himself as Jose Gonzales. Hurley removed him from the car and again asked his name; this time, he told her it was Angel. Appellant and Oscar, who had heard Cesar identify himself as Jose, also told the police that his name was Jose. Hurley recognized the driver from prior contacts, however, and knew the names she was being given were false. She later confirmed that the drivers name was Cesar B. Hurley searched the Honda and found a tire iron and a jack handle in the trunk.
In response to police questioning as to what happened to the car window, appellant, Oscar, and Cesar all gave varying accounts. Oscar claimed they had driven from Windsor to Healdsburg and were just driving around then they decided to pull over in front of the junior high school. After they parked the car, some guy suddenly came up and broke their window with a golf stick. He described this guy as a [w]hite male adult, bald, wearing all black, . . . 17, 18 years in age and about 5 9, a description that fit John Cast. Oscar then saw someone else writing down the Hondas license plate number so they drove away. When asked why they took off, he did not provide an answer.
Appellant told the police they were parked listening to music, while Cesar said they were driving down the street when he heard his car making a noise so he pulled over to check for mechanical problems.
Meanwhile, around the same time Officer Hurley was questioning appellant and his companions, Officer Urteago responded to the Cast house, where he interviewed Cast and Brewer. In the area of the Cast house, he found glass on the street consistent with a cars window being broken at that spot. He eventually brought Cast and Brewer over to where the Honda stopped and they identified appellant, Oscar, and Cesar as the perpetrators. After Urteago related Cast and Brewers story to Hurley, appellant, Oscar, and Cesar were placed under arrest.
Later that afternoon, Hurley went to the Cast house, where she contacted Cast and Brewer, who were a little excited with the shakes that one gets after an adrenaline rush. She could hear in Brewers voice that she was shaken from the incident. In contrast, Hurley described the occupants of the Honda as fairly calm. In examining the Cadillac for damage, Hurley noticed some nicks in the glass on the right, back passenger window of the Cadillac and some [s]light nicks, little tiny lines, on the doorframe. She attempted to photograph the damageboth during daylight and at night timebut the damage did not show up in the pictures. She never saw a bat or golf club in the car or the vicinity. According to Cast, the windows had all been replaced following the vandalism incident in September so they were only about three months old.
As to the Cadillac, the rear passenger window suffered a chip in the window, and there were a couple scratches on the front passenger window. The windows had all been replaced following the vandalism incident in September so they were only about three months old.
ii. Defense Case
On December 28, 2006, appellant and his brother, Oscar, were at home helping pack up the family house in preparation for a move. Because they needed help moving some heavy furniture, their friend, Cesar, came over to help for a while. They then left for Santa Rosa so Cesar could cash a check. As they were returning to appellants house in Windsor, appellant asked Cesar if they could pick up his friend, Ivan R., who lived in Healdsburg a few blocks from the junior high. Appellant had called Ivan earlier in the day to ask for help moving, and Ivan agreed to help, although he was not sure if he could get a ride.
As they were driving by the school on the way to Ivans house and just after they passed a white Cadillac parked on the street, Cesar suddenly pulled the car over, popped the hood, and, without saying that anything was wrong with the car, got out to check the engine. Appellant had not heard a noise because the music was on. After a minute or two, Cesar put the hood down, got back in the car, and told appellant, who was sitting in the front passenger seat, to call Ivan. Appellant turned around to ask Oscar, who was sitting in the back seat, for the phone, and as he did so, the rear window broke. As appellant described it, I heard a noise. And I turned around and glass was flying everywhere, and it was getting all over my brother.
About ten or fifteen seconds after the window broke, appellant, Oscar, and Cesar, who were all empty-handed, got out of the car. Appellant had not seen who had broken the window, but when he got out of the car, he saw Cast swinging the shaft of a golf club, and the broken head lying in the street. At the time, appellant had never seen Cast before and did not know his name, but he learned his name over the course of the court proceedings.
Appellant walked around the car and headed towards the street. He was cussing and said, Why did you break our window? Cast was cussing back and said, Get the hell out of there. Cast did not say why he broke the window and was just standing in the middle of the street swinging the golf club. Appellant took a few steps forward, raised his hands, and said, What the fuck. Why did you do that? He never heard anyone say anything gang related.
At some point, appellant saw Brewer come out from behind a truck parked behind the Honda. She was calling them bitches and telling them to get the fuck out of there. She also said she knew their faces and was going to call the police. She then threw a full, plastic bottle at appellant, hitting him in the shin. Appellant, Oscar, and Cesar then got into the Honda and left. When asked why he got into the car, appellant explained he did so because he did not want to get hurt. At no point did appellant hit the Cadillac that day, nor did he say anything relating to the earlier vandalism of the Cadillac, any kind of court proceeding, or police report.
Shortly after they drove off, they saw a police car and pulled over so they could tell the police what happened. Instead, they were arrested. Appellant was unaware that there was a jack or a crowbar in the car. He also claimed to have been unaware as of that day that Casts car had been vandalized in September.
On cross-examination, appellant acknowledged having prepared a written statement after he was taken to the police station. Nowhere in the statement did he mention they were having car trouble or that Cesar had popped the hood. He also omitted mention that Cast was the person swinging the golf club, having written instead, [T]hey started to swing a golf club at us. He admitted that he, Oscar, and Cesar did not stay and wait for the police to come to the scene of the confrontation and that he made no attempt to call the police.
On recross-examination, appellant denied telling the police that Cesars name was Jose. He acknowledged knowing that su trece are gang words that refer to the Sureos, a criminal street gang.
As part of the defense case, the tape of Novellas call to 911 was played to the jury and Novella was recalled to the stand. Consistent with his earlier testimony, he reiterated that he did not see or hear a broken window that day. However, on the tape, he can be heard responding, I didnt see that. I came out after that happened, when the dispatch operator asked him, Who busted out the windshield? When asked what he meant by his statement on the tape, Novella explained that he was referring to the two prior vandalism attacks on Casts car and one on his own.
Novella can also be heard on the tape saying, But I know the guy, the guy threw a piece of a golf club. When asked by defense counsel what he was referring to, Novella could not recall. The relevant portion of the tape was replayed, and he explained, I want to say that somebody as they were getting in the car threw a piece of something, and it was probably a golfit wasnt a whole golf club, though.
C. Rebuttal
Appellants friend, Ivan, testified that he did not recall appellant calling him on December 28, 2006 to ask about helping him move. According to Ivan, no oneappellant or otherwiseever called to ask him to help appellant move.
On cross-examination, when asked if appellant had ever been to his house in Healdsburg, he responded, I dont know. Could be. When asked if he remembered what he did on December 28, 2006, he testified he was at soccer practice, which usually started at 3:30 p.m. He confirmed that at some point after dark on some evening, possibly either December 28 or 29, 2006 but he really could not remember, he was in the kitchen figuring out what to eat for dinner when appellants mother called asking if he knew where appellant and Oscar were.
III. Discussion
A. The Section 136.1 Findings Were Unsupported By Substantial Evidence
i. Standard of Review
Where the juvenile court has sustained a petition, an attack on the sufficiency of the evidence to support that ruling is governed by the substantial evidence rule. [Citation.] The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt. [Citation.] (In re Andrew I. (1991) 230 Cal.App.3d 572, 577. See also People v. Carter (2005) 36 Cal.4th 1114, 1156; In re Roderick P. (1972) 7 Cal.3d 801, 808-809; In re Oscar R. (1984) 161 Cal.App.3d 770, 773.) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Substantial evidenceincludescircumstantial evidenceand all reasonable inferences flowing from such evidence. (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.)
ii. Lack of Substantial Evidence
Section 136.1, subdivisions (a)(1) and (a)(2) make it a punishable offense to knowingly and maliciously dissuade, or attempt to dissuade, any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.[8] Under section 136.1, subdivision (b), it is a crime to prevent, or attempt to prevent, the victim of or witness to a crime from reporting the crime. Subdivision (c) makes it a felony [w]here the act is accompanied by force or by an express or implied threat of force or violence or [w]here the act is in furtherance of a conspiracy. ( 136.1, subds. (c)(1), (c)(2).)
The California Supreme Court recently confirmed that dissuading or attempting to dissuade a witness is a specific intent crime: The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1210, citing People v. Lyons (1991) 235 Cal.App.3d 1456, 1460-1462.) Unless the actions or statements are meant to achieve the consequence of affecting a potential witness testimony, no crime has been committed. (People v. Ford (1983) 145 Cal.App.3d 985, 989.)
In the instant case, the prosecutor theorized that appellant was attempting to dissuade Cast from testifying in any proceeding against Gonzales, Oscar, or Carlos stemming from the September 7 vandalism of Casts Cadillac. According to the prosecutor, the evidence showed that those three were detained in connection with the September 7 vandalism of John Casts Cadillac. On December 28, Gonzalez was arraigned on charges stemming from that incident. That same day, appellant, Oscar, and Carloss older brother Cesar drove from Windsor to Casts house in Healdsburg, and once there, appellant attempted to smash the windows of Casts Cadillac while Oscar and Cesar yelled gang slogans and flashed gang tattoos at Cast and his girlfriend. Appellant claimed to have been in Healdsburg that day because they were going to pick up his friend Ivan, who agreed to help them move some furniture, but Ivan testified that neither appellant nor anyone else called him to ask for help moving. Appellant, who was then living in Windsor, had no legitimate reason for being in Healdsburg, let alone across the street from Casts house, that day, and instead went there for the sole purpose of harassing Cast and dissuading him from testifying against about the September 7 vandalism. The prosecutor called appellants versionthat they just happened to be driving through Healdsburg and just happened to stop across the street from Casts house on the very day Gonzalez was arraigneda long chain of coincidences that just makes no sense.
Even viewing the evidence in the light most favorable to the judgment, as we must (People v. Carter, supra, 36 Cal.4th at p. 1156), the evidence offered by the prosecution does not constitute substantial evidence to support the juvenile courts finding that appellant attempted to dissuade Cast from participating as a witness. As noted above, a section 136.1 violation is a specific intent crime, yet the prosecutor failed to present any evidence demonstrating that appellant attacked Casts Cadillac with the intent to deter Cast from testifying against anyone involved in the earlier vandalism incidents, or specifically, Oscar, Carlos, or Gonzales. There was no evidence appellant knew about the two prior vandalism incidents involving Casts car, and in fact, appellant testified he did not know Casts car had been vandalized on September 7, 2006. There was no evidence that appellant knew Gonzalez or Cast. To the contrary, appellant testified that on the date of the incident, he did not know Casts name or who he was. There was no evidence that appellant knew Gonzalez was being prosecuted for the September 7 incident or that he had been arraigned that day on charges stemming from that incident. There was no evidence he knew that Oscar and Carlos had been detained in connection with the September 7 vandalism. There was no evidence that Cast would be a witness in the case against Gonzalez or any possible case against Oscar or Carlos. Indeed, as the prosecutor herself suggested during closing argument, there was no evidence that Cast even knew who vandalized his car on September 7. While specific intent may be inferred from circumstantial evidence (People v. Cole (2004) 33 Cal.4th 1158, 1222; People v. Pimental (1970) 6 Cal.App.3d 729, 734; CALJIC 2.02), the circumstantial evidence must lead to a reasonable inference of intent. And in this case, the inference that appellant intended to intimidate John Cast was not reasonable and was unsupported by substantial evidence.
Certainly, the evidence supports a finding that appellant, Oscar, and Cesar went to Healdsburg specifically in search of Cast or his car in order to harass him in some way.[9] Undoubtedly, there was a history of animosity between Cast on the one hand and a group of individuals including Cesar, Carlos, and Jaime Gonzalez on the other, as evidenced by Casts testimony that Carlos and some friends ran up on him a few years earlier, as well as the repeated vandalism to Casts car. However, even assuming appellant went to Casts house with the intent of harassing him, it does not necessarily follow that he did so with the intent of dissuading him from testifying. Again, the record is devoid of any evidencedirect or circumstantialof such intent. The prosecutors conclusion is simply too attenuated to constitute a reasonable inference.[10]
B. The Burden Of Proof Was Not Shifted To Appellant
Appellant next claims the judgment must be reversed in its entirety because the juvenile court and prosecutor shifted the burden of proof to the defense. The argument derives from the following exchange between the prosecutor and the court when defense counsel moved for dismissal of all charges after the prosecution rested:
The Court: I am going to grant the motion as to count one on the 236 violation, the false imprisonment. I do not believe that the evidence at this prima facie point, it could be alleged beyond a reasonable doubt that the element of false imprisonment requiring that the alleged victim be forced to stay in a location or move to another location by force has been shown. [] As to counts two through seven, the motions to dismiss are being denied.
[] . . . [] Prosecutor: Okay. And just for further clarification, Your Honor, Your Honor has found that, based on the information that you have right now, that the petitioner has proved beyond a reasonable doubt paragraphs two through seven.
The Court: Made a prima facie showing.
Prosecutor: Okay. Because I think the standardI just want to make sure Im correct, on the right track. The Court has found that the requirement under 701.1 is that the Court must dismiss counts not proven true beyond a reasonable doubt at this point. So, okay.
The Court: Im only making that finding as to count one, the false imprisonment charge.
Appellant then claims that the prosecutor capitalized on the trial judges confusion by arguing in summation not that the elements of the crimes charged were proven beyond a reasonable doubt, but by arguing instead that appellants version of the events was not credible, that he had no lawful purpose for visiting Healdsburg, and that his flight from the scene of the confrontation evidenced his consciousness of guilt. This, appellant submits, was irrelevant if the prosecution failed to shoulder its burden of proof during its case-in-chief. We disagree.
Contrary to appellants interpretation, the exchange between the prosecutor and the court did not evidence the courts misunderstanding of the appropriate burden of proof. After the judge made reference to a prima facie showing, the prosecutor clarified the proper standard: the Court must dismiss counts not proven true beyond a reasonable doubt at this point. The judge then acknowledged it was applying the proper reasonable doubt standard by confirming that the prosecution had failed to meet that burden with respect to only the first count. Clearly, then, the implication was that the prosecution had proven the remaining counts beyond a reasonable doubt. Additionally, during earlier argument on the motion, the prosecutor properly articulated the standard: Its my burden to prove the facts beyond a reasonable doubt. Finally, the court minutes of the jurisdictional findings confirm that the court found the allegations in counts 2, 3, and 6 to be true beyond a reasonable doubt.
C. There Was No Prosecutorial Misconduct
Lastly, appellant contends the judgment must be reversed because the prosecutor committed misconduct. As a procedural matter, we agree with the People that by failing to object to this alleged misconduct in a timely fashion, appellant waived any right to raise this argument on appeal. (People v. Thornton (2007) 41 Cal.4th 391, 454; People v. Young, supra, 34 Cal.4th at pp. 1184-1185.) But even if appellant had preserved the claim for appeal, we would reject it.
Appellant contends the prosecutor committed misconduct by successfully objecting to his testimony about his reasons for leaving the Cast house after the confrontation and then arguing during summation that his flight from the scene evidenced his consciousness of guilt. A prosecutors conduct violates the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.] (People v. Young, supra, 34 Cal.4th at p. 1184.) While the prosecutors strategy certainly gives us pause for thought, we need not decide whether it rendered the proceeding fundamentally unfair or was deceptive or reprehensible, because any claimed misconduct was necessarily harmless.
During closing argument, the prosecutor made two brief references to appellants departure from the Cast house, noting that upon learning the police had been called, appellant, Oscar, and Cesar got into the Honda and drove off, behavior, argued the prosecutor, that was consistent with being the guilty party not the innocent victim. Appellants flight from the scene of the confrontation, however, was insignificant in light of the substantial evidence that the trio were the aggressors in the incident. The case essentially came down to which version the court believed: that offered by Cast, Brewer, and Novella, or that offered by appellant. Clearly, the court found the former to be more credible, and the prosecutors passing reference to appellants flight did not likely weigh on that decision since the evidence that they were the aggressors was abundant.[11]
IV. Disposition
The sustained findings on counts 3 (attempting to dissuade a witness in furtherance of a conspiracy) and 6 (attempting to dissuade a witness by use of force) are reversed. The sustained finding on count 2 (vandalism) is affirmed. The matter is remanded to the juvenile court for further proceedings consistent with the foregoing.
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Richman, J.
We concur:
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Kline, P.J.
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Haerle, J.
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[1] All subsequent statutory references are to the Penal Code except where otherwise noted.
[2] The Cadillac was actually owned by Casts mother but they both drove it.
[3] A similar petition was filed as to appellants brother, Oscar.
[4] The contested hearing was a joint hearing as to both appellant and Oscar.
[5] Appellant, who had a lengthy history with the juvenile court prior to this matter, had previously been ordered to complete the program at the Hanna Boys Center. At the time of the incident giving rise to the instant allegations, he was home from the center for the holidays.
[6] Carlos B. was also known as Jose B. and Carlos D.
[7] Although it is unclear from the record how old they were at the time of the incident, both Brewer and Cast were 18 years old at the time of the jurisdictional hearing.
[8] Section 136.1 provides in its entirety: (a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [] (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice. [] (b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization. [] (c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. [] (2) Where the act is in furtherance of a conspiracy. [] (3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section. [] (4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony. [] (d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section. [] (e) Nothing in this section precludes the imposition of an enhancement for great bodily injury where the injury inflicted is significant or substantial. [] (f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170.
[9] Wisely, appellant does not challenge on substantial evidence grounds the juvenile courts sustaining of the vandalism allegations.
[10] Although not advanced during the contested hearing, the People put forth an alternative theory here concerning the witness intimidation allegations: that [appellant, Oscar, and Cesar] intended their threats (yelling profanities and gang slogans, displaying gang tattoos) to dissuade Cast and Brewer from reporting the instant (December 28) vandalism itself, vandalism which reasonably was related to the ongoing hostility they manifested towards Cast. This theory finds even less support in the record than the one advanced at trial.
[11] In his reply brief, appellant argues for the first time that the court erred in excluding his testimony regarding his reasons for fleeing from the scene of the confrontation in front of Casts house. Appellants failure to raise an issue in his opening brief waives the issue on appeal. (People v. Stanley, supra, 10 Cal.4th at p. 793; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345. fn. 6; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) That being said, we nevertheless express our skepticism at the courts ruling precluding appellant from testifying about why he left the scene of the confrontation.
