In re C.G.

Filed 11/19/09 In re C.G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Catherine J. Pratt, Commissioner. Affirmed with directions.

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Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Minor C.G. appeals from the order of wardship entered after the juvenile court found that she committed petty theft in violation of Penal Code section 484, subdivision (a). We direct the trial court to correct a clerical error in the order of wardship but otherwise affirm.

BACKGROUND

The prosecutions evidence consisted of the testimony of Kmart loss prevention officer Albert Young and a surveillance video recording. Young testified that on June 2, 2008, at approximately 1:20 p.m., he saw C.G. and another minor, J.G., walking around inside Kmart with a shopping cart full of items and throwing items into the cart without looking at the prices. He saw C.G. helping conceal items in[] a bag that the other minor had. He also saw C.G. opening up various packages and saw both minors ripping the security tags and price tags off merchandise. At one point, one of the minors said Look out.

Eventually C.G. and J.G. left the store with store merchandise but without stopping to pay. Young then tried to stop them and identified himself as a loss prevention officer. He succeeded in detaining J.G. and recovered the stolen items from her, which consisted of various video games, a rug (which Young had seen C.G. stuffing into J.G.s bag), and a DVD player. C.G. was detained by sheriffs deputies at a nearby gas station.

During cross-examination of Young, the defense introduced Youngs written report on the incident. The report mentions only one minor, J.G. Young testified that he wrote the report about J.G. first because she was the only person he personally detained, and the police told him he did not need to write another report concerning C.G. Had Young not been told not to write another report, he would have written a separate report concerning C.G.

C.G. testified in her defense. She confirmed that on the date of the incident she went to the Kmart in question with her aunt and her friend J.G. She denied stealing anything or helping J.G. steal anything from the store. She also denied pushing a cart, putting any items in a cart, going to the video section or the beauty section of the store, and looking at any CDs, DVDs, or video games. She testified that she left the store by herself and went to the gas station to buy a pack of gum; she said she did not buy the gum at Kmart because Kmart had only big packs of gum.

In rebuttal, the prosecution recalled Young to the witness stand and played the surveillance video. Young identified C.G. as the person depicted in the video pushing a cart containing quite a few items in what appeared to be the electronics section of the store. The video also showed C.G. holding a CD, and it showed her standing very close to, and conversing with, J.G., who was holding a bag. Another portion of the video showed J.G. removing a DVD player from its box while C.G. stood at most 10 feet away. The video also showed C.G. handing a rug to J.G., who then returned to the cart, which contained the bag. Another portion showed C.G. breaking the tags off the merchandise.

The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging petty theft, declared C.G. to be a ward of the court, and ordered her placed home on probation.^[1]

DISCUSSION

I. Motion to Dismiss

After the prosecution rested (i.e., before C.G. testified and before the surveillance video was introduced), C.G. moved to dismiss pursuant to section 701.1 on the ground that the evidence was insufficient. The trial court denied the motion. On appeal, C.G. argues that the court erred. We disagree.

[T]he standard for review of the juvenile courts denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition. (In re Man J. (1983) 149 Cal.App.3d 475, 482.) When the prosecution rested, the record already contained substantial evidence to support the charged offense. Young was an eyewitness to the crime, identified C.G. in court during his testimony, and testified to all of the elements of the charge. The uncorroborated testimony of a single witness is sufficient unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) Youngs testimony was neither physically impossible nor inherently improbable, so it was sufficient.

C.G. argues, to the contrary, that Youngs testimony was suspect because his in-court identification of C.G. was made in extremely suggestive circumstances and studies have shown that the reliability of an eyewitness identification may be compromised by the effect on memory of the witnesss exposure to subsequent information or suggestions, and by the effects on recall of bias or cues in identification procedures or methods of questioning. The issues C.G. raises, however, relate to Youngs credibility. On review of the sufficiency of the evidence, it is not our role to second-guess the trial courts credibility determinations. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) The trial court found Young credible, and we will not disturb that finding on appeal.

C.G. also argues that Youngs testimony was inherently improbable because Youngs written report stated expressly and unambiguously that he observed only one female subject, J.G. The argument is based on a mischaracterization of the record. Young testified that there is nothing in the report indicating either that C.G. was in the store or that more than one person participated in the theft. Young did not testify that the report affirmatively indicates that J.G. was the only person involved. On redirect examination, he explained that the report was about only J.G. and that he would have written a separate report about C.G. had the policewho were the ones to detain C.G.not told him that no additional report was necessary. There is nothing inherently improbable about that testimony, and the reports focus on J.G. does not render Youngs testimony concerning C.G.s involvement inherently improbable.

For all of the foregoing reasons, we affirm the trial courts denial of C.G.s motion to dismiss.

II. Sufficiency of the Evidence

C.G. further contends that even after the addition of the prosecutions rebuttal evidence, the evidence was still insufficient to prove the charge beyond a reasonable doubt. In support of that contention, she raises the same arguments concerning Youngs testimony that we rejected ante. She also argues that the person depicted in the video with J.G. was wearing clothes that were inconsistent with Youngs description of C.G.s clothes. The argument is mistaken. The court described the video as showing a person who does not have pants below the knees. It appears to me that the calves are bare, but I cannot see where the shorts or pants end. Young then testified that, at the time of the incident, C.G. was wearing pink pedal pushers, I guess you call them. They cover up the knee. There is no inconsistency.

C.G. also argues that the video itself is of very limited probative value, because the court admitted that by looking at the video alone the court could not conclude with 100 percent certainty that C.G. was the individual accompanying J.G. The argument does not establish that the evidence was insufficient. As we have already explained, Youngs testimony was already sufficient without the video. Even if the video would not have been independently sufficient, the video and Youngs testimony were mutually reinforcing because, as the trial court observed, the video corroborated Youngs testimony both as far as the broad strokes of what happened and as to the specific details: The video showed J.G. and C.G. close together, talking, pushing the cart, picking up the rug, and removing tags from merchandise.

The evidence was already sufficient when it consisted of nothing more than Youngs testimony, and it was considerably stronger after introduction of the surveillance video. We therefore reject C.G.s challenge to the sufficiency of the evidence.

III. Due Process

The probation officers report recommended that C.G. be placed on informal probation but not declared a ward of the court, pursuant to section 725, subdivision (a). The trial court rejected that recommendation, declared C.G. a ward of the court pursuant to section 602, and placed her home on probation.^[2] The court rejected the probation officers recommendation because C.G. was dishonest and not truthful in her sworn testimony at trial.

On appeal, C.G. argues that the court violated her federal and state due process rights by, in effect, punishing her for testifying untruthfully. We disagree.

A criminal defendant has a constitutional right to testify for the defense. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53; People v. Robles (1970) 2 Cal.3d 205, 214-215.) Nonetheless, a defendants right to testify does not include a right to commit perjury (United States v. Dunnigan (1993) 507 U.S. 87, 96), and a trial courts determination that a defendant testified untruthfully at trial may be considered as a factor in sentencing (People v. Redmond (1981) 29 Cal.3d 904, 913; People v. Howard (1993) 17 Cal.App.4th 999, 1002).

Under the foregoing principles, the trial courts reliance on its determination that C.G. testified untruthfully was not improper. As the trial court noted, the video recording showed that C.G. testified untruthfully at trial on a number of points (for example, she testified that she never looked at any CDs, but the video showed her holding a CD). The trial courts reliance on C.G.s dishonesty at trial as a basis for denying probation without wardship under section 725, subdivision (a), did not violate C.G.s due process rights.

IV. Denial of Request for Probation Without Wardship

Finally, C.G. argues that the trial court abused its discretion in denying her request for probation without wardship under section 725, subdivision (a), on the basis of a single factor, namely, dishonest testimony. C.G. points out that the probation officer recommended probation without wardship, and C.G. also cites section 725.5 for the proposition that the court was required to consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history. We are not persuaded.

The court received the probation officers report into evidence and stated on the record that the court had read and considered it. The court also expressly considered the nature of the offense (noting that probation without wardship is appropriate in some instances of a petty theft-type offense). Nothing in the record indicates that the court failed to consider any factors that it should have considered under section 725.5. The courts decision to reject the recommendation of probation without wardship was reasonable and supported by substantial evidence and hence did not constitute an abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)

DISPOSITION

The superior court is directed to correct the clerical error in the order of wardship so that the order no longer states that C.G. is placed on probation without wardship under section 725, subdivision (a), but rather is declared a ward of the court and placed home on probation. The order of wardship is otherwise affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

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^[1] All subsequent statutory references are to the Welfare and Institutions Code.

^[2] The order of wardship contains a clerical error. Line 21 of the order provides that C.G. is placed on probation pursuant to section 725, subdivision (a), which would mean that C.G. was not declared a ward of the court. The reporters transcript reflects unambiguously that the court rejected C.G.s request for probation without wardship pursuant to section 725, subdivision (a). We therefore direct the trial court on remand to correct the clerical error so that the order does not state that C.G. is placed on probation without wardship pursuant to section 725, subdivision (a), but rather that she is declared a ward of the court and placed on home probation.