re Andrew C.
Filed 7/6/12 In re Andrew C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re ANDREW
C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW C.,
Defendant and Appellant.
F062363
(Super. Ct. No. JJD063953)
THE COURT
APPEAL
from a judgment of the Superior Court of
County. Juliet L. Boccone, Judge.
Thea
Greenhalgh, 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, Eric L. Christoffersen
and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
It was alleged in a juvenile
wardship petition filed September 1, 2010, that appellant, Andrew C., a minor,
committed two counts of second degree
robbery (Pen. Code, §§ 211, 212, subd. (c); counts 2, 5) and individual
counts of the following offenses:
kidnapping during the commission of a
(a); count 1), carjacking (Pen. Code, § 215, subd. (a); count 3),
§§ 664, 215.5, subd. (a); count 4), unlawfully dissuading a witness by
force or threat (Pen. Code, § 136.1, subd. (c)(1); count 6), and attempted
unlawful taking or driving of a vehicle (Pen. Code, § 664; Veh. Code, § 10851,
subd. (a); count 7). At the jurisdiction
hearing, on December 14, 2010, the court found true all allegations except for
count 7, which it dismissed as not proved true beyond a reasonable doubt.
On
April 19, 2011, at the subsequent disposition hearing, the court adjudged
appellant a ward of the court, ordered him committed to the
Rehabilitation, Division of Juvenile Justice and set his maximum term of
physical confinement at seven years to life plus nine years two months, based
on the instant offenses and offenses adjudicated in a prior wardship
proceeding.
On
appeal, appellant contends (1) the evidence was insufficient to support his
adjudication of the count 4 attempted carjacking, and (2) the juvenile court
erroneously considered evidence of other misconduct by appellant, thereby
impermissibly lessening the prosecution’s burden of proof as to count 4, in
violation of his due process rights. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Vehicle Theft
name="_ftnref2" title="">[1]
Miguel
Reya testified to the following: At
approximately 6:45 p.m., on August 30, 2010 (August 30), he walked out of the
apartment at 671 East Isham in Porterville that he shared with his cousin and
saw appellant and J.G. One of the boys
was sitting in the driver’s seat of a car that Reya’s cousin regularly drove
and which was parked in front of the apartment. The other boy was standing “at
the door†of the car on the driver’s side, approximately 20 inches from the
car, holding a bottle partially filled with “[a]lcohol.â€
open, and the boy sitting in the driver’s seat was “moving around†in such a
way that it appeared he was “trying to turn it on.†“As soon as [Reya] saw [appellant and J.G.],
they got out of the car†and began walking away at a “leisurely†pace. Reya got in his car, which was also parked in
front of the apartment, and followed appellant and J.G., for approximately
three or four minutes. However, he “lost
them.â€
Count 4 – Attempted Carjacking of Nico Castro
Later
that same evening, at a point when it was “beginning to get dark,†Nico Castro
drove to the home of his cousins at 741 East Orange in Porterville, stopped the
car, and got out. He went to open the
gate, and as he was doing so, two persons, whom Castro identified in court as
appellant and another minor, J.G., came running toward him. Castro got back in the car, and the doors
automatically locked as he put the car in gear.
Appellant
and J.G. ran up to the passenger side of the car. One of them was carrying a half-full
“bottle[] of liquor.†They were speaking
to Castro in English, in “a normal tone of voice,†but Castro, who speaks only
Spanish, could not understand them.
Either appellant or J.G.—Castro did not see which one—“tapped†on the
window, as if “calling ... for [Castro] to pay attention to him,†and J.G.
“tried to open†the passenger side door.
On cross-examination, Castro indicated he was unable to see the door
handle or “anyone actually trying to open the door ....â€
Appellant and
J.G. ran away “[w]hen ... the lady came out saying that they had stolen ....â€
the “810 market.†Before they fled,
while Castro was inside the car and appellant and J.G. were outside the car,
Castro thought appellant and J.G. “were going to steal [the] car ....â€
City
of Porterville Police Detective Aaron Sutherland testified that he “obtain[ed]
a statement from Nico Castro†and that Castro stated the following: “[B]oth subjects who approached the vehicle
had attempted to open the passenger side [door].†Both appellant and J.G. “appeared angry†and
were “were yelling at [Castro].â€
Counts 1, 2 and 3 - Kidnapping, Robbery and Carjacking
of Jorge Lopez
name="_ftnref6" title="">[5]
Still
later that August 30 evening, Jorge Lopez drove his 1996 GMC “Blazerâ€
automobile to the “810 market†in Porterville.
He was drinking a soda as he got back into his car, at which point he
realized to his surprise that there were two people in the car with him: J.G., who was in the front passenger seat,
and appellant, who was in the back seat, on the passenger side. “[T]hey†had a bottle containing tequila, and
both of them appeared to be drunk.
J.G.
told Lopez to start the car and drive.
Afraid that “they might do something to [him],†Lopez started the car
and drove off. He drove for
approximately two or three minutes, “down Orange ....†When he reached Main and Orange, J.G.
“threatened†him with a screwdriver.
Lopez got out of the car and J.G. and appellant drove off.
California
Highway Patrol Officer Michael Yan was on duty on August 30 when, at
approximately 7:00 p.m., he received a dispatch report that included a
description of a “suspect vehicle.†At
approximately 7:27 p.m. that evening, he saw a vehicle meeting the description,
and thereafter he effected a stop of the vehicle. It was the one Lopez had been driving. There were two persons in the vehicle, J.G.,
who was driving, and appellant.
Other Evidence
Detective
Sutherland testified that the residence at 741 East Orange in Porterville and
the “8-10 Market†are approximately 20 yards apart and 671 East Isham in
Porterville is approximately 200 yards away from those two locations.
The Juvenile Court’s Ruling
In
finding the count 4 attempted carjacking allegation true, the court
stated: “the obvious common scheme and
plan that was demonstrated by going from one car to the next is sufficient to
support the intent with regard to
... Count 4 ....
[¶] And the Court does feel that
there was sufficient evidence to prove beyond a reasonable doubt that that was
their intent. And it was a specific
intent that was demonstrated by the manner in which they carried that
out.â€
DISCUSSION
Sufficiency of the Evidence of Attempted Carjacking
“An attempt to commit a crime
consists of two elements: a specific
intent to commit the crime, and a direct but ineffectual act done toward its
commission.†(Pen. Code, § 21a.) Thus, “When a defendant acts with the
requisite specific intent, that is, with the intent to engage in the conduct
and/or bring about the consequences proscribed by the attempted crime
[citation], and performs an act that ‘go[es] beyond mere preparation ... and
... show[s] that the perpetrator is putting his or her plan into action’
[citation], the defendant may be convicted of criminal attempt.†(People
v. Toledo (2001) 26 Cal.4th 221, 230.)
“Carjacking is the felonious
taking of a motor vehicle in the possession of another or from her person or
immediate presence against her will and with the intent to either
victim of possession of her car, accomplished by force or fear. [Citations.]â€
(People v. Marquez (2007) 152
Cal.App.4th 1064, 1067-1068.) Therefore,
in the instant case, the People had the burden of proving beyond a reasonable
doubt that appellant had the specific intent to permanently or temporarily
deprive Nico Castro of his car, and that he committed a direct but ineffectual
act toward that end.
Appellant
contends the evidence was insufficient to establish either the specific intent
or the direct-but-ineffectual-act elements of attempted carjacking, and
therefore his adjudication of that offense cannot stand. Specifically, he argues that the evidence
that appellant and/or J.G. tried to open the car door—evidence he characterizes
as speculation by Castro—was not sufficient to establish that appellant
committed the requisite act, and that the evidence of his “subsequent conduct,â€
i.e., the kidnapping, robbery and carjacking of Jorge Lopez, provides no
support for the conclusion he acted with the requisite specific intent.
Standard
of Review
In general, 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 sufficiency and the
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: We resolve
neither credibility issues nor evidentiary conflicts. (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
“[T]he reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence--evidence that is reasonable, credible and of solid value--such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes 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.) “Reversal on this ground [i.e., insufficiency of the
evidence] is unwarranted unless it appears ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [the adjudication].†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that
evidence.†(In re Michael D. (2002) 100
Cal.App.4th 115, 125.) “‘[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].’†(
1387, 1393-1394, italics omitted.) “Evidence 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.)
Analysis
As we explain below,
(1) Detective Sutherland’s testimony that Castro told him appellant tried to
open the locked door of Castro’s car, considered in conjunction with (2) the
evidence of another crime or act, specifically the Lopez carjacking and the
actions surrounding the alleged vehicle theft, constitute substantial
circumstantial evidence that appellant committed attempted carjacking as
alleged in count 4.
name="_ftnref7" title="">[6]
Appellant
challenges both of these points. First,
he argues that the evidence was insufficient to establish that, as Castro told
Detective Sutherland, appellant attempted to open the car door. Appellant bases this contention on Castro’s testimony that he (Castro) could not see the door handle
and therefore did not actually see
either appellant or J.G. try to open the door.
In the absence of direct observation, appellant contends, Castro’s
assertion that appellant tried to open the car door is mere speculation. Such speculation, he argues further, can
provide no support for the judgment. We
disagree.
An
opinion is “an inference from facts
observed.†(1 Witkin, Cal. Evidence (4th
ed. 2000) Opinion Evidence, § 1.) For
lay opinion
testimony to be admissible, it must be, among other things, “[r]ationally based
on the perception of the witness[.]â€
(Evid. Code, § 800;
name="_ftnref8" title="">[7] People
v. Chapple (2006) 138 Cal.App.4th 540, 547.) This requirement is an application of the
personal knowledge rule, i.e., the rule set forth in section 702, subdivision
(a) that except where an expert witness gives an opinion in justifiable
reliance on information from others, “‘the testimony of a witness concerning a
particular matter is inadmissible unless he has personal knowledge of the
matter. [Citations.]’†(2 Witkin, Cal. Evidence (4th ed. 2000)
Witnesses, § 46 [“knowledge requirement also applies to lay witness’ opinion
testimony; i.e., such an opinion must be ‘[r]ationally based on the perception
of the witness’â€].) This rule applies to
statements made by hearsay declarants, as well as the testimony of live
witnesses. (People v. Valencia (2006) 146 Cal.App.4th 92, 103-104 [when an
out-of-court statement is offered for its truth, the hearsay declarant must
have personal knowledge of the fact(s) stated].)
Appellant’s
argument is, in effect, that Castro’s statement, as
reported by Detective Sutherland, that appellant tried to open the car door is,
in the terms of the Witkin formulation, an “inference†unsupported by “facts
observed.†Because Castro testified he
could not see the door handle, appellant suggests, the record does not
establish that Castro had personal knowledge that appellant was trying to open
the door. Appellant, however, did not
object to the statement, and “‘“It is settled law that incompetent testimony, such as
hearsay or conclusion, if received without objection takes on the attributes of
competent proof when considered upon the question of sufficiency of the
evidence to support a finding.
[Citations.]â€â€™â€ (
476.)
title="">[8] “[A] reviewing court must consider all of the
evidence admitted at trial when considering [an insufficiency of the evidence]
claim.†(McDaniel v. Brown (2010) 558 U.S. __ [130 S.Ct. 665, 672, L.ED.2d
582].) “‘“Evidence technically
incompetent admitted without objection must be given as much weight in the
reviewing court in reviewing the sufficiency of the evidence as if it were
competent. [Citations.]â€â€™â€ (People
v. Bailey (1991) 1 Cal.App.4th 459, 463.)
Therefore, even if the statement would have been
excludable in the face of a proper objection, in the absence of such an
objection it cannot be successfully urged on appeal that the statement was
insufficient to establish that appellant tried to open the door. Appellant’s attempt to open the car door was
a “direct but ineffectual act†toward the commission of a carjacking, within
the meaning of Penal Code section 21a.
Appellant
also argues that “[t]he juvenile court here relied on the theory of common plan
to find specific intent to carjack as alleged in count [4],†and that despite
some “[g]eneric similarities,†the “acts alleged as supporting [the allegations
of the kidnapping,
robbery and carjacking of Jorge Lopez] were significantly dissimilar†to the
acts upon which the attempted carjacking allegation was based, and were
therefore insufficient to establish that both the count 4 offense and the
crimes against Lopez were committed pursuant to a “common scheme or plan.†Thus, he argues further, the other crimes
evidence was insufficient to establish the specific intent element of the
attempted carjacking allegation.
Appellant bases this argument on section 1101 and cases interpreting
that statute, such as People v. Ewoldt
(1994) 7 Cal.4th 380 (Ewoldt). Appellant’s claim is without merit.
“Subdivision (a)
of section 1101 prohibits admission of evidence of a person’s character,
including evidence of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies,
however, that this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact other than the
person’s character or disposition.†(
Thus, evidence of “a crime ... or other act†(§ 1101, subd. (b)) can be
admissible to prove various factors, including intent (ibid.) and that “[the] defendant committed the charged offenses
pursuant to the same design or plan [the] defendant used to commit the
uncharged misconduct.†(
Appellant’s
argument misses the mark for at least two reasons. First, section 1101 is a rule of
admissibility of evidence; the statute does not tell us whether evidence of
specific instances of conduct can be sufficient
to establish the specific intent element of a charged offense. And second, the court did not conclude, as
appellant seems to assert, that the evidence of the Lopez carjacking and
appellant’s actions surrounding the alleged vehicle theft were admissible
against him under section 1101, subdivision (b) with respect to count 4 on a
“common design or plan†(Ewoldt,
rationale. Rather, the juvenile court
ruled that the “common plan or scheme that was demonstrated from going from one
car to the next†was “sufficient to support the intent [element of the attempted carjacking allegation].†(Italics added.)
On the question of whether this
conclusion can be upheld, we find instructive
(Ramirez) and People v. Prince (2007) 40 Cal.4th 1179 (Prince), which essentially hold that evidence of other offenses,
both before and subsequent to the crime charged, are admissible to show
intent. In Ramirez, our Supreme Court upheld the defendant’s convictions of
multiple felonies, including 14 counts of burglary. (Ramirez,
supra, 39 Cal.4th at pp. 407,
463.) One of the elements of burglary is
the specific intent to commit larceny or theft.
(Id. at p. 463.) There was evidence that in one of the
burglaries, the defendant entered the victims’ condominium but escaped moments
later when one of the victims opened the garage door and fled. The defendant argued the evidence was
insufficient to support the intent element on this count “because ‘[t]here was
no evidence of theft, ransacking, or attempted taking of property.’†(Id.
at p. 462.) However, “with only one
exception, there was evidence of the theft of property in each of the other
charged crimes in which defendant entered a residence.†(Id.
at p. 463.) Based on this evidence, the
court concluded, “The evidence is overwhelming that one of defendant’s purposes
in entering [the victims’] residence was to steal.†(Ibid.)
In
Prince, the defendant was convicted
of multiple murders, burglaries and other offenses, including two attempted
burglaries of the apartment occupied by Stephanie Squires and Sarah
Canfield. (Prince, supra, 40 Cal.4th at pp. 1196, 1255.) The first occurred on April 25, 1990. On that day, Squires saw the defendant, an African-American
man, follow her to the pool in her apartment complex. Squires later left the pool area and returned
to her apartment. A neighbor saw an unidentified African-American man walk up
the stairs to Squires’s apartment and try the door handle. (Id.
at p. 1196.) That was all of the
evidence submitted specific to the April 25 crime.
The second
attempted burglary in this sequence occurred three days later, when Canfield
heard a knock at the apartment door and saw the door handle moving. She looked out and saw the defendant standing
at the door. The defendant’s car was
seen leaving the apartment complex parking lot.
(Prince, supra, 40 Cal.4th at pp. 1196, 1255-1256.) Other crimes of which the defendant was
convicted also involved the defendant attempting to gain entry to a victim’s
residence by trying the front doorknob, and several crimes were perpetrated
against young women while or shortly after the victim was sunbathing near her
residence or exercising at a particular local gym. (Id.
at pp. 1191 [count 1], 1194 [counts 5 and 6], 1196-1197 [count 9], 1198 [count
12], 1200-1201 [count 16], 1202 [counts 19 and 20], 1203 [counts 22 and 23],
1203-1204 [count 24], 1204 [count 26], 1204-1205 [count 27].) In addition, there was evidence property had
been stolen in 10 of the burglaries of which appellant was convicted. (Id.
at pp. 1196 [count 6], 1198 [counts 11, 12], 1199 [count 15], 1200-1201 [count
16], 1201 [count 17], 1202 [counts 18, 20], 1203 [count 23], 1204 [count 26].)
Citing to
in light of the modus operandi involved in many of the other crimes, that the
man who tried the door on both occasions was defendant. For the same reason, a jury reasonably could
determine that his intent was, in part, theft.â€
(Prince, supra, 40 Cal.4th at p. 1256.)
Here, the evidence of another
subsequent crime and the earlier act, very close in time, circumstantially
support the proposition that appellant, like the defendants in
is especially instructive because in that case the defendant’s otherwise
ambiguous act of trying to open the apartment door was similar to appellant’s
act of trying to open the door of Castro’s car.
The evidence in the instant case showed that appellant, in addition to
trying to force his way into Castro’s car on the evening of August 30, (1)
engaged in conduct strongly suggestive of a thwarted vehicle theft, apparently
earlier that evening, and (2) successfully completed a carjacking later that
evening after his encounter with Castro,
close physical proximity to each other.
This evidence of conduct similar
to that underlying the count 4 allegation, and occurring in close temporal and
spatial proximity to that conduct, both before and after the conduct underlying
count 4, was sufficient to establish that appellant had the specific intent to
carjack Castro. (See
903, 917 [“probative value of ‘other crimes’ evidence is increased by the
relative similarity between the charged and uncharged offenses[] [and] the
close proximity in time of the offensesâ€]; People
v. Beamon (1973) 8 Cal.3d 625, 632 [evidence of prior robberies admissible to show, inter alia, defendant’s
intent]; People v. Garcia (2001) 89
Cal.App.4th 1321, 1335 [“most cases deal with questions of admissibility of
evidence of prior crimes or misconduct, but evidence of crimes or misconduct
committed after the charged incident may also have relevanceâ€];
established by multiple uncharged crimes occurring both before and after
charged offense]; Ramirez,
[specific intent established by multiple uncharged crimes occurring after
charged offense].)
In summary, we
conclude the evidence was sufficient to establish that appellant committed a
direct but ineffectual act toward the commission of a carjacking, with the
specific intent to commit that offense.
We therefore uphold appellant’s adjudication of attempted carjacking.
Due
Process
Appellant
contends the prosecution’s burden of proof was “impermissibly lessened†by the
juvenile court’s “improper consideration†of the other crimes/acts evidence, in
violation of appellant’s due process rights under the United States and
California Constitutions. However, he
failed to object below to this evidence on due process grounds, and therefore
he has not preserved the issue for appeal.
(People v. Burgener (2003) 29
Cal.4th 833, 869 [defendant waives constitutional claims by failing to
articulate them to the trial court].)
In any event,
appellant’s claim also fails on the merits.
In order to be admissible under section 1101 to prove intent, evidence
of other crimes and/or acts must meet two requirements. First, “[it] must be sufficiently similar to
support the inference that the defendant ‘“probably harbor[ed] the same intent
in each instance. [Citations.]â€â€™â€ (Ewoldt,
supra, 7 Cal.4th at p. 402.) Of all the factors that can be proved with
evidence of other crimes and/or acts, the least degree of similarity between
the uncharged act and the charged offense is required in order to prove
intent. (Ibid.) In addition, the
probative value of the other crimes/acts evidence “must be substantial and must
not be largely outweighed by the probability that its admission would create a
serious danger of undue prejudice, of confusing the issues, or of misleading
the jury.†(People v. Kipp (1998) 18 Cal.4th 349, 371.) For the same reasons that we conclude the
other crimes/acts evidence supports the specific intent element of attempted
carjacking—the similarity of the conduct underlying those offenses to the
conduct upon which the count 4 offense is based and the timing and location of
both the charged and uncharged acts—we conclude that the challenged evidence
satisfies both these requirements. And
because this evidence was properly admitted, we necessarily reject appellant’s
constitutional claim. (
1197, fn. 8.)
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J., Poochigian, J. and Franson, J.
name="_ftn2" title="">[1] As indicated above, the court found this count not
true. We include a summary of the
evidence relating to this count because such evidence is relevant to the issues
raised on appeal. Counts 5 and 6 are not
relevant to our analysis and therefore we do not include a summary of the facts
underlying those offenses.
