In re
Filed 4/12/13 In re Quincy A. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re Quincy A., a
Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
Quincy A.,
Defendant and Appellant.
D062029
(Super. Ct.
No. J230570)
APPEAL from
a judgment of the Superior Court
of
County, Browder A. Willis III and Richard R. Monroy,
Judges. Affirmed in part and remanded
with directions.
The
district attorney filed a petition in the juvenile court accusing Quincy A.
(Minor) of two counts of unlawfully
entering a residence of another with the intent to commit theft at a time when
the residence was occupied by another (Pen. Code, §§ 460 & 667.5, subd.
(c);
counts 1 & 2). It was further
alleged the Minor committed three counts of petty theft (§ 484; counts 3, 5
& 7) and two counts of entering a building with the intent to commit theft
(§ 459; counts 4 & 6).
Following a
contested hearing, the court found the allegations contained in counts 2, 4, 5,
6 and 7 to be true. The Minor was
declared a ward of the juvenile court and placed on probation.
The Minor
appeals, contending (1) all counts must be reversed because the videotape
evidence was not properly authenticated at trial; (2) the court erred in
permitting the introduction of his interview with police in violation of
section 26 finding the Minor understood the wrongfulness of his conduct; and
(4) the case must be remanded because the trial court failed to exercise its
discretion to declare the offenses to be felonies or misdemeanors. We affirm the true findings of the juvenile
court, but agree with the Minor's final point and remand this matter with directions
to the juvenile court to conduct further proceedings in accordance with this
opinion.
STATEMENT
OF FACTS
On August 5, 2011, Marty Fisher awoke to
find the Minor in her home without permission.
Fisher discovered several items moved and her cigarettes and lighter
missing. On October 29, 2011, the Minor entered a 7-Eleven
store in the city of El Cajon. He reached over the counter and took items
from the store's cigarette area. On November 9, 2011, the Minor again
entered the 7-Eleven store, reached over the counter area, took an unknown
quantity of cigarette packages and ran out of the store. Surveillance video recorded both events at
the 7-Eleven store and still photographs were obtained from the videos.
Officers
contacted the Minor at his school. After
being read his Miranda rights, the
Minor acknowledged he knew the difference between right and wrong and gave
examples of each. The Minor agreed to
answer questions he felt comfortable with and then identified himself as the
black male in the photographs obtained from the surveillance videos.
DISCUSSION
1.
Authenticity of the Video/Photograph Evidence
We first
consider the Minor's contention that the 7-Eleven store's surveillance videos
were not properly authenticated before the trial court admitted them into
evidence. In considering such claims, we apply the abuse of discretion
Williams (1997) 16 Cal.4th 153, 197.
A videotape
is equivalent to a " '[w]riting' " for purposes of the Evidence
Code. (Evid. Code, § 250;
1086, fn. 12.) Under Evidence Code
section 1401, subdivision (a), "[a]uthentication of a writing is required
before it may be received in evidence."
Therefore, the surveillance videos were not admissible unless they were
properly authenticated.
"[A]
video recording is authenticated by testimony or other evidence that it
actually depicts what it purports to show." (McGarry
v. Sax (2008) 158 Cal.App.4th 983, 990.)
"The general rule is that photographs are admissible when it is
shown that they are correct reproductions of what they purport to show. This is usually shown by the testimony of the
one who took the picture. However, this
is not necessary and it is well settled that the showing may be made by the
testimony of anyone who knows that the picture correctly depicts what it
purports to represent." (
405, 409; see also People v. Bowley
(1963) 59 Cal.2d 855, 860-861 [citing Doggett
with approval].) "[I]t is not
required that the photographer himself be produced where other evidence is
available to accomplish the same end.
The effect and probative value of such other evidence is the important
consideration, and not that the way or manner of making the requisite showing
should be exactly the same in all cases."
(Doggett, at p. 410.)
At trial on
March 6, 2012, Officer
Alvarado of the El Cajon Police Department testified the 7-Eleven store manager
gave him two surveillance videos on November
10, 2011. As he watched the
videos in court, Officer Alvarado stated they appeared the same as when he
viewed them at the 7-Eleven store. He
identified the date and time stamp on the first video as November 9, 2011, at 15:04 hours. He identified
the date and time stamp on the second video as October 29, 2011, at 16:20
hours. The store manager told Officer
Alvarado both videos were recorded on the same surveillance system tied in with
the cash register in the 7-Eleven store.
Officer Alvarado stated he had been to the store on previous occasions
as well as on November 10 to receive the videos and the store appeared the same
in the videos as those times he visited it.
Officer Alvarado's testimony therefore provided sufficient evidence the videos
accurately depicted the defendant's conduct in the 7-Eleven store. Further, the close proximity in time between the officer's viewing and
the trial, along with his personal recollection of the layout of the store,
tend to show the accuracy of the officer's testimony.
In addition, the Minor's own
self-identification in the still photographs taken from the surveillance video
supports the video's authenticity. Officer
Kolombatovic of the El Cajon Police Department went to the Minor's school,
showed him the photographs he obtained from the surveillance video, and asked,
"That's you, right?" The Minor
responded, "Yes." Officer
Kolombatovic noted the Minor appeared to be wearing the same clothing as he was
wearing in the video and photographs.
The Minor corrected Officer Kolombatovic by stating he was actually
wearing a different pair of shorts. Cumulatively, the officers'
testimony and the Minor's statements provide sufficient authentication of the
video evidence and the trial court did not abuse its discretion in admitting
the evidence.
2.
Voluntary, Knowing, and Intelligent Waiver
The Minor
next claims the trial court erred in admitting the evidence of his statements
during his discussion with police officers on November 30, 2011, over his objection that he did not
knowingly and intelligently waive his Miranda
rights. After reviewing the record, we
conclude the court correctly overruled the Minor's objection.
When we
review the denial of a motion to suppress a statement obtained in alleged violation
of Miranda, " ' "[w]e must
accept the trial court's resolution of disputed facts and inferences, and its
evaluations of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed facts, and
those properly found by the trial court, whether the challenged statement was
illegally obtained. [Citation.]"
' [Citations.]" (People
v. Crittenden (1994) 9 Cal.4th 83, 128.)
"To
establish a valid waiver of an accused person's right to counsel and to remain
silent, the People must show, by a preponderance
of the evidence, that the accused voluntarily, knowingly and intelligently
waived such rights.
[Citations.]" (
Cal.App.4th 563, 577.) Whether a
juvenile knowingly and intelligently waived his privilege requires courts to
consider the "totality of the circumstances surrounding the interrogation,
to ascertain whether the accused in fact knowingly and voluntarily decided to
forgo his rights to remain silent and
to have the assistance of counsel."
(Fare v. Michael C. (1979) 442
U.S. 707, 725.) This approach mandates
inquiry into all the circumstances surrounding the interrogation, including
evaluation of the juvenile's age, experience, education, background and
intelligence, and whether he has the capacity to understand the warnings given
him, the nature of his Fifth Amendment
rights and the consequences of waiving those rights. (Id.
at pp. 725-726.) While age is important
in determining voluntariness, emphasis on that criteria does not mean a
different standard of proof applies to juveniles than to adults. (Id.
at p. 725.)
Here, the
Minor was 13 years old at the time he was interviewed by Officers Kolombatovic
and Larson while sitting at a lunch table outside his school regarding the
events surrounding the thefts at the 7-Eleven store. Before initiating the conversation, Officer
Kolombatovic read the Minor his rights under Miranda and asked if the Minor understood those rights. In response to the second two warnings, the
Minor said he was unfamiliar with the term "attorney" and Officer
Kolombatovic clarified "attorney" means lawyer. Officer Kolombatovic then asked the Minor if
he wished to waive those rights. The
Minor initially responded he wasn't sure, so Officer Larson asked if the Minor
would be willing to answer questions with which he was comfortable, while
telling him he did not have to answer questions about which he was not
comfortable. The Minor replied
"Yes" and proceeded to answer some, but not all, of Officer
Kolombatovic's questions. Notably, when
Officer Kolombatovic asked the Minor why he had taken cigarettes from the 7-Eleven
store, the Minor replied "No comment."
The
totality of the circumstances on the record establishes the Minor understood
his rights under Miranda and he
knowingly and voluntarily waived those rights.
The officer's unchallenged trial testimony established the Minor was in
a noncoercive environment while seated outside on the lunch tables at his
school being interviewed. During the
clarified any portions of the advisement the Minor did not understand before
asking the Minor if he would answer questions.
Further, the Minor agreed to answer questions he was comfortable with
after receiving his Miranda
warning. The totality of the
circumstances therefore establishes by a preponderance of the evidence the
Minor knowingly, intelligently and voluntarily waived his Miranda rights and the court's ruling on the objection was
proper.
3.
Knowledge of the Wrongfulness of the Acts
Next, the
Minor claims the court failed to make a section 26 finding that he understood
the wrongfulness of his conduct. We
disagree.
When a
minor contends there is insufficient evidence to support the determination that
he understood the wrongfulness of his conduct, "[w]e review the whole
record most favorably to the judgment to determine whether there is substantial
evidence--that is, evidence that is reasonable, credible, and of solid
value--from which a reasonable trier of fact could have made the requisite
finding under the governing standard of proof." (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.)
A juvenile
under the age of 14 is presumed incapable of committing a crime, but the
presumption can be rebutted upon clear and convincing proof the minor
appreciated the wrongfulness of the criminal act alleged. (§ 26;
231-232.) A child's knowledge of the
wrongfulness of his conduct is rarely susceptible of direct proof and generally
must be established by circumstantial evidence and the reasonable inferences from
it. (People
v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) A court should consider "the minor's
age, experience, and understanding, as well as the circumstances of the
offense, including its method of commission and concealment. [Citations.]" (In re
James B. (2003) 109 Cal.App.4th 862, 872, 873.) As a child approaches the age of 14, the more
likely it is for the child to appreciate the wrongfulness of his acts. (Id.
at pp. 872-873.) The conduct and
statements of a minor during the commission of the crime or after its
commission may also evidence an awareness of the wrongfulness of the
conduct. (In re Cindy E. (1978) 83 Cal.App.3d 393, 400.)
Here, there
was clear and convincing evidence on the record from which the court could have
concluded the Minor understood the wrongfulness of his conduct. The Minor committed the thefts in late
October and November when he was 13 and his 14th birthday in February was
approaching. At trial, Officer
Kolombatovic testified he asked the Minor several questions to determine
whether the Minor knew the difference between right and wrong and whether the
Minor knew stealing cigarettes was wrong.
In response, the Minor provided examples of right and wrong conduct and
explicitly stated he knew stealing cigarettes from the 7-Eleven store was
wrong. The court was entitled to rely on
the testimony at trial in making its finding under section 26 and that
testimony provided clear and convincing evidence the Minor knew the
wrongfulness of his actions.
Further,
the parties stipulated section 26 was established at trial. At the disposition hearing, the discussion
leading to the stipulation was as follows:
"The Court:
The parties stipulating -- let's stipulate to -- are the parties willing
to stipulate to the fact that [Penal Code section] 26 was in fact established
either at a prior court proceeding or by agreement?
"[The Defendant]:
We will submit.
"The Court:
The parties stipulate that the issue of [Penal Code section] 26 was
established at a prior court proceeding."
Therefore, in addition to the clear and convincing evidence
provided at trial, the parties stipulated to the satisfaction of section 26
requirements and no further finding was necessary.
4.
Misdemeanor/Felony Declaration
Finally,
the Minor contends the juvenile court's failure to expressly state on the
record whether the true findings were felonies or misdemeanors mandates a
remand for that purpose. We agree.
Welfare and
Institutions Code section 702 provides when a juvenile defendant is found to
have committed a wobbler—i.e., an offense that would in the case of an adult be
punishable alternatively as a felony or a misdemeanor—"the court shall
declare the offense to be a misdemeanor or felony." The purpose of Welfare and Institutions Code section
702 is to ensure the juvenile court is aware of its discretion to treat the
offense as a misdemeanor and exercises its discretion. (In re
Manzy W. (1997) 14 Cal.4th 1199, 1207.)
The commercial burglary in counts 4 and 6 are "wobbler"
offenses. (§§ 459 & 460.)
The Supreme
Court has held Welfare and Institutions Code section 702 requires an express,
formal finding by the juvenile court as to felony or misdemeanor nature of a
wobbler. (In re Manzy W., supra, 14
Cal.4th at p. 1204.) Neither a court's
recitation of the felony charge made in the petition nor a court's commitment
of the juvenile offender for the maximum, felony-length term, nor a minute
order reciting that an offense is or could be a "felony," constitutes
full compliance with the statutory mandate.
(In re Ricky H. (1981) 30
Cal.3d 176, 191; see also In re Manzy W.,
at pp. 1207-1209; In re Dennis C.
(1980) 104 Cal.App.3d 16, 23; In re
Jeffery M. (1980) 110 Cal.App.3d 983, 985.)
Here, the
court's failure to fully comply with Welfare and Institutions Code section 702
was error requiring remand to the juvenile court for the limited purpose of
formally designating each offense as a misdemeanor or a felony and possible
recalculation of the maximum period of confinement. (See In
re Manzy W., supra, 14 Cal.4th at
p. 1211.)
DISPOSITION
The matter
is remanded to the juvenile court for compliance with Welfare and Institutions
Code section 702 and possible recalculation of the Minor's maximum period of
confinement. In all other respects, the
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code unless otherwise
specified.
