Opinion
F050564
5-3-2007
In re DEREC M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DEREC M., Defendant and Appellant.
Richard D. Runcie, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J., and Dawson, J.
INTRODUCTION
On April 20, 2006, appellant Derec M., was charged in a petition filed pursuant to Welfare and Institutions Code section 602 alleging that he feloniously took or drove a vehicle (Veh. Code, § 10851, subd. (a), count one) and drove without a license, a misdemeanor (Veh. Code, § 12500, subd. (a), count two). After a contested jurisdictional hearing, the juvenile court found the allegations true and count one to be a felony. At the disposition hearing on May 31, 2006, the court ordered Derecs commitment to the Tulare County Youth Treatment Center for a term of 45 days to 180 days.
On appeal, Derec contends the juvenile court considered hearsay evidence that was also inadmissible under the corpus delicti rule. Derec argues that without this evidence, there was insufficient evidence to sustain the courts true finding on count one. Derec further contends the juvenile court abused its discretion in finding his violation of count one to be a felony.
FACTS
On April 17, 2006, Derecs family went out to dinner leaving keys to the gold Dodge Caravan parked in their driveway. Two and a half hours later, they received a telephone call from Derec, who told his father, Todd M., that he had taken the van without permission. Derec told Todd he had been seen driving the van by the police officer assigned to his school. When Derecs parents returned home, they found the van parked in the garage. According to Todd M., Derec did not have permission to drive the van and did not have a drivers license.
Derecs counsel objected to this testimony on the ground that Derecs statement to his father was being admitted prior to the establishment of the offense in violation of the corpus delicti rule. Counsel further argued that there was no foundation for the fathers testimony concerning Derecs statements because the father did not personally see Derec drive the car. Counsel later objected to the fathers testimony on hearsay grounds. The court overruled the hearsay and corpus delicti objections. The court noted that the fathers testimony was being taken out of sequence and that the prosecutor had to establish a proper foundation for the testimony. At the end of the hearing, defense counsel renewed her previous hearsay objection to the fathers testimony.
The court had Derecs father testify on May 12th and continued the hearing until May 16th for Officer Housers testimony.
Police Officer Jeremy Houser was assigned to a local high school as a youth services officer. Houser knew Derec from prior contacts. At 7:30 p.m. on April 17, 2006, Houser was off-duty when he saw a gold van parked near a local Save Mart. Houser recognized two of the juveniles exiting the van. Houser went into Save Mart but did not see the juveniles there. When Houser returned home, his neighbor told him several juveniles were parked in a gold van and were loitering around an automatic teller machine (ATM) at the shopping center.
Houser drove back to the shopping center and pulled his car into a parking space alongside the gold van, which was parked in front of the ATM. Houser saw Derec seated in the drivers seat of the van and called out his name. Derec looked at Houser and quickly drove out of the parking space and out of the shopping center parking lot. Derec accelerated fast enough for the van tires to break traction with the pavement.
The van is registered to Derecs family. Houser called Derecs father the next day. Todd M. told Houser that Derec admitted taking the van. Houser checked Derecs record and determined he was only 15 years old when he drove the van. Houser arrested Derec.
Todd M. further testified that on April 17, 2006, Derec called his mother and asked for permission to move the car from one side of the driveway to the other side so he could play basketball. Todd M. and his wife gave Derec permission to move the car within the driveway. Todd M. started teaching Derec to drive when he was 12 years old. Derec drove on dirt roads or to move the car in the driveway, but not on public roads.
HEARSAY & CORPUS DELICTI
Appellant contends the trial court improperly admitted his inculpatory hearsay statements through the testimony of his father. Appellant argues this evidence was inadmissible hearsay and that its consideration by the court violated the corpus delicti rule. Appellant argues that, without this testimony, there was insufficient evidence to establish count one because there was no independent proof of the crime.
Respondent argues that defense counsel did not lodge a timely objection to the fathers testimony on hearsay grounds. Although defense counsel initially objected to Todd M.s testimony on corpus delicti and foundation grounds, she later objected on hearsay grounds. Counsel did so shortly after Todd M. had testified concerning his sons statements. Given the fact that this was a hearing before the juvenile court, we find that under the circumstances, the hearsay objection was timely enough to preserve the issue on appeal.
Respondent further argues appellant is subject to forfeiture, citing People v. Braxton (2004) 34 Cal.4th 798, 813 for the proposition that it is incumbent on a party to press a court for a ruling. Here, defense counsel renewed her evidentiary objections to the trial court, which ruled on each evidentiary objection. Appellant is not subject to the forfeiture rule announced by our high court.
The thrust of respondents argument at page four of the opening brief is that the hearsay objection, although made, was belated. Appellants counsel contends on pages two and three of his reply brief that respondent has misled the court. We reject this contention and deny appellants request for judicial notice.
Evidence Code section 1220 provides in relevant part that, "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party." The statement of a party may be offered against that party even where the statement is not against the partys interest or is self-serving. (People v. Zack (1986) 184 Cal.App.3d 409, 416-417.) Appellant was undeniably a party to the action and his statement to his father was subject to a basic exception to the hearsay rule.
Appellant further argues that his fathers statement was admitted into evidence before the corpus delicti of the crime was established. The purpose of the corpus delicti rule is to ensure that no one is falsely convicted of a crime that did not occur by his or her untested words alone. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169 (Alvarez).) The corpus delicti rule, also known as the independent-proof rule, retains validity only insofar as it prohibits a conviction where the defendants out-of-court statements are the only evidence establishing that an offense was committed. (Id. at p. 1180.)
The modicum of necessary independent evidence of the corpus delicti is not great. Such evidence may be circumstantial, and need only be a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency. Once this is accomplished, a defendants statements may be considered. Indeed, even in a jury trial, the omission of an independent-proof instruction is necessarily harmless if, as a matter of law, a slight or prima facie showing was made and a rational jury properly instructed could not have found otherwise. (Alvarez, supra, 27 Cal.4th at p. 1181.)
Here, Housers testimony provided far more than slight or prima facie evidence. Houser knew appellant from prior encounters and recognized him when he returned to the Save Mart shopping center. Houser saw appellant in the drivers seat of a gold van and watched him accelerate away from the scene with the tires of the van breaking traction with the pavement.
Appellant argues that when Houser saw appellant driving, Houser provided no evidence that appellant did not have the consent of the owner. Appellant also argues that Houser provided no evidence of appellants specific intent to either temporarily or permanently deprive the owner of title or possession of the van.
It appears appellant seeks to apply the corpus delicti rule so that each element of the offense must be shown independent of his own confession or admission. The California Supreme Court, however, ruled that it has "never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved." (People v. Jones (1998) 17 Cal.4th 279, 303.) We therefore reject appellants contention that Housers testimony failed to establish any particular element or elements of the charged offense. Housers testimony did not have to do so to satisfy the corpus delicti rule. We find that Housers testimony established a slight or prima facie showing of some injury, loss or harm and that a criminal agency was involved.
Todd M. testified that appellant had contacted him earlier and obtained permission to move the van in the driveway. As respondent points out, the appellants admission also tended to show that he drove the car knowing he had exceeded his parents permission to merely move the van in the driveway of the family residence to play basketball.
FELONY FINDING
Appellant contends the trial court abused its discretion in finding that count one, which is a wobbler offense, was a felony rather than a misdemeanor. Appellants argument is based on the premise that the court permitted hearsay testimony from his father without first establishing the corpus delicti of the crime. We rejected this argument for the reasons stated in the preceding section of our opinion.
Appellant further argues that he had permission to move the van within the driveway of the family residence. Appellant admits that, by driving the car to the shopping center, he exceeded the scope of his fathers permission to drive the van but maintains that his fathers permission to drive the van is a "factor which militates against the court having determined . . . [the allegation] to be a felony."
The juvenile court has a duty to make a considered determination on the record concerning whether a wobbler offense is a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) Here, the juvenile court expressly noted that count one was a wobbler offense and expressly found appellants conduct was "felony conduct." If an offense committed by a juvenile is a wobbler, all that is necessary for the record on appeal is a declaration by the court as to whether the offense is a misdemeanor or a felony. (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1181-1182.)
Courts have broad authority to determine whether an offense should be treated as a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973.) In reviewing the exercise of a trial courts discretion, appellate courts are bound by an extremely deferential and restrained standard. (Id. at p. 981.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. (Id. at p. 977.)
The juvenile court found that appellant called his parents to ask to move the van as a ruse to take the vehicle. Appellant not only violated his parents trust, he drove the van at a high rate of speed in a shopping center parking lot, breaking traction with the pavement as he raced away after Houser called out to him. For a juvenile who did not even have a license to drive a vehicle, such conduct bordered on the reckless. Appellant has failed to show that the juvenile courts decision was irrational or arbitrary.
Appellant also had three prior juvenile adjudications for misdemeanor offenses and a prior violation of probation prior to the filing of the instant petition.
DISPOSITION
The judgment is affirmed.