Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County(Super.Ct.No. J209570). Gregory W. Jones, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
On transfer for disposition from the Superior Court of Orange County.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
The Orange County juvenile court found true that minor committed felony arson in violation of Penal Code section 451, subdivision (c). Minor was thereafter declared a ward of the court and placed on probation in the custody of his parents. On appeal, minor contends (1) there was insufficient evidence to sustain his conviction for arson; (2) the trial court erred in admitting evidence of minor’s prior bad acts; and (3) the People failed to establish that minor knew the wrongfulness of his act. We reject these contentions and affirm the judgment.
After the Orange County juvenile court sustained the arson allegation against minor, the case was transferred to San Bernardino County for all remaining proceedings, as minor and his parents had moved to Hesperia.
I
FACTUAL BACKGROUND
In January 2005, coparticipant Christian R. and minor were friends and attended the same elementary school. Christian was in the fifth grade at the time and was familiar with Ladera Palma Middle School in La Habra (Ladera). On several occasions Christian and minor had been to Ladera.
On the evening of Saturday, January 8, 2005, minor and Christian went to Ladera and set fire to a wooden door leading into the school’s multipurpose room. They started the fire by placing papers at the base of the door and using gasoline to ignite the fire. The fire caused extensive damage, and a fireman was injured while trying to extinguish the fire.
At trial, Christian recanted his statements to the police and the principal at his elementary school concerning the fire, even though he was aware that the case against him had been dismissed. He claimed he did not remember who set the fire but was aware of the fire after speaking with Officer Drew Grizwa. He denied telling Officer Grizwa that he and minor had set the fire. However, he acknowledged it was possible that he did not remember telling the officer his statements because it was so long ago. In addition, Christian recalled telling the officer that he and minor had set papers at the base of the wooden garage-type door at the school and lit the papers with wood matches from minor’s home. He also admitted he told the officer that minor had taken a gasoline can from minor’s home and had poured the gasoline along the base of the wood door of the multipurpose room at Ladera. Christian, however, claimed that when he spoke with the officer he was talking about a fire he and minor had started at minor’s home on the same day as the Ladera fire and that his mother and Officer Grizwa were pressuring him. However, he admitted that his mother was not even present when the officer spoke with him the second time.
Christian also remembered speaking with the principal at the elementary school. He recalled telling the principal that he and minor started the fire at Ladera by using gasoline and matches from minor’s home, but then he claimed he only told the principal that because the principal said he had witnesses who saw him at Ladera. He stated that he had lied to the principal. Christian acknowledged that he had made written a statement in which he admitted that he and minor had started the fire at Ladera.
The principal testified that he had spoken to minor and Christian about their playing with fire at minor’s home. Minor denied playing with fire. Christian admitted to playing with fire in minor’s backyard, using gasoline. Minor, Christian, and another boy, Salvador G., had been arguing about talking to the police with respect to the fire when they were brought into the principal’s office. Minor stated to the others that they should not talk to the police. Christian privately told the principal that he had confessed to the fire at Ladera when Officer Grizwa came to his home and the officer and his mother told Christian to tell the truth. Christian also stated that he and minor had been at Ladera and had started the fire. Christian, at the request of the principal, thereafter wrote his statement concerning the fire. Christian did not appear nervous or say anything concerning the request; in fact, he was smiling. The principal did not threaten Christian to tell the truth, state to Christian that he should tell the truth because he had witnesses who saw Christian at Ladera, or tell Christian that if he did not make a written statement he would be expelled from school.
Salvador testified that he used to be friends with minor and Christian until the Ladera fire. He explained that they tried to get him involved or make him responsible for that fire. Salvador stated that on the day of the fire he, minor, and Christian had been at Ladera but that he had left Ladera before the fire occurred.
Officer Grizwa testified that he went to Christian’s home after the principal informed him that Christian might have been involved in the Ladera fire. When he spoke with Christian, he did not threaten him, he had on civilian clothing, and he did not state that he knew Christian had been involved in the fire or that he was there to arrest him. The officer did encourage him to be truthful. Christian informed the officer that he and minor had been igniting fires in minor’s backyard utilizing some gasoline from the garage and that Christian mentioned Ladera without the officer even asking him about the school. After the officer and Christian’s mother urged Christian to be truthful, Christian stated that he and minor had placed some papers at the base of the wooden garage-type door at the school and lit the papers with wooden matches from minor’s house. While speaking about the Ladera fire, Christian appeared nervous. However, Christian was definitive when he stated it was he and minor who had started the fire at Ladera. When the officer spoke with Christian the second time, Christian again appeared nervous and stated that he and minor had used gasoline in igniting the fire at Ladera. Christian also stated that Salvador had left prior to the fire; Salvador had urged them not to start the fire; minor had brought a plastic gasoline container from minor’s garage to the school; minor had poured the gasoline on the surface of the multipurpose door; Christian had lit the fire; and they tried to extinguish it, but it had gotten larger than they expected.
II
DISCUSSION
A. Insufficiency of the Evidence
Minor contends there was insufficient evidence to sustain his conviction for arson as the only witness to the crime, Christian, gave inconsistent statements. We disagree.
Our review of any claim of insufficiency of the evidence is limited. In reviewing a claim that the evidence is insufficient to support a conviction, “[w]e review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.) “‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
Given this court’s limited role on appeal, minor bears an enormous burden in claiming there was insufficient evidence to sustain his conviction. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In determining whether substantial evidence exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In the present matter, minor’s sole complaint regarding the sufficiency of the evidence is an attack on Christian’s credibility, specifically his inconsistent statements. However, as noted above, the credibility of Christian’s testimony was a matter for the trier of fact to resolve, and the court found Christian’s in-court statements to be incredible but his out-of-court statements to be credible. The “‘uncorroborated testimony of a single witness is sufficient’” to sustain a jury finding “unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)
Minor contends that under In re Miguel L. (1982) 32 Cal.3d 100, Christian’s out-of-court statements to Officer Grizwa and the principal cannot provide substantial evidence to support his conviction. In People v. Gould (1960) 54 Cal.2d 621, the Supreme Court concluded an out-of-court identification not confirmed by either an identification at trial or by other evidence tending to connect the defendant to the crime cannot support a conviction. (Id. at p. 631.) The Miguel L. court, relying on Gould and its progeny, held that when the only inculpatory evidence against the defendant, here minor, is a declarant’s extrajudicial statement repudiated at trial, particularly when that declarant is an accomplice and hence is deemed a “‘tainted source’” who is “‘suspect, untrustworthy and unreliable,’” the conviction must be reversed for lack of substantial evidence. (Miguel L., at pp. 105-110, quoting People v. Belton (1979) 23 Cal.3d 516, 525-526.) Minor argues that because Christian’s extrajudicial inculpatory statements were repudiated at trial, his conviction must be reversed.
It appears Miguel L. was overruled sub silentio by People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas). In Cuevas, our Supreme Court overruled Gould’s corroboration requirement, specifically rejecting the proposition that “‘out-of-court statements of identification are inherently less reliable than other out-of-court statements.’” (Cuevas, at p. 265, quoting United States v. Owens (1988) 484 U.S. 554, 561 [108 S.Ct. 838, 98 L.Ed.2d 951].) Instead, reasoned Cuevas, the sufficiency of an out-of-court statement to support a conviction must be measured under the traditional substantial evidence test without the Gould corroboration overlay. (Cuevas, at p. 257.) Although Cuevas did not specifically overrule Miguel L., at least one court has suggested that the “legal premise [of Miguel L.] may have evaporated” in light of Cuevas. (People v. Williams (1997) 16 Cal.4th 153, 248.)
Even if some aspect of Miguel L. survives Cuevas, an extrajudicial statement inculpating the defendant, even if repudiated at trial, can support conviction if there is some modicum of corroboration for the extrajudicial statement. (People v. Montiel (1993) 5 Cal.4th 877, 929, fn. 25 [“Gould requires reversal only ‘when [the conviction] is based solely on an extrajudicial statement not confirmed by the witness at trial’ [citation], and the modicum of evidence which will validly support an unconfirmed extrajudicial statement is slight”].) For example, the court in People v. Lucky (1988) 45 Cal.3d 259, 289, held a repudiated extrajudicial statement could be corroborated by another repudiated extrajudicial statement, and the court in In re Stephen P. (1983) 145 Cal.App.3d 123 (disapproved on other grounds in Cuevas, supra, 12 Cal.4th at p. 275, fn. 5) noted other evidence suffices to corroborate if it ““tends in some degree to implicate the defendant[]” [citation] . . . ‘[even though it may be] slight and entitled to little consideration when standing alone.’” (Stephen P., at p. 130.)
The corroborating evidence is sufficient here. Christian made the same statements to the principal as he did to Officer Grizwa concerning the Ladera fire. In addition, Christian made the same statement in writing. Salvador’s testimony that he went to Ladera with minor and Christian but left before the fire started also corroborated Christian’s testimony that minor and Christian had started the fire at Ladera. Christian’s out-of-court statements were further corroborated by evidence that he and minor hung around together and had used gasoline to start fires in minor’s backyard. We conclude the corroboration in this case obviates the application of Miguel L. even if it retains any vitality after Cuevas.
Although a conviction based on mere suspicion or speculation must be reversed (People v. Briggs (1967) 255 Cal.App.2d 497, 500; People v. Lewis (1963) 222 Cal.App.2d 136, 149), it was for the trier of fact to determine whether to credit Christian’s original description of the events rather than his post-reconciliation recantation. Because there was evidence from which the trier of fact could have concluded the former was more credible, substantial evidence supports the conviction. We reject minor’s arguments to the contrary.
B. Admission of Prior Bad Acts
Minor next contends that the juvenile court erred when it allowed the prosecution to introduce evidence of minor’s prior bad acts, i.e., evidence that Christian and minor had started fires in minor’s backyard prior to the Ladera fire.
As an initial matter, we note that minor waived this issue on appeal. Under Evidence Code section 353, a claim of erroneous admission of evidence is waived unless the party claiming error made a timely objection or motion to strike. (Evid. Code, § 353, subd. (a).) The record reflects that no objection concerning minor’s prior bad acts was made at trial. By not objecting at trial to this evidence, minor waived the objection. (Ibid.; People v. Farnam (2002) 28 Cal.4th 107, 159; People v. Barnett (1998) 17 Cal.4th 1044, 1130; People v. Coleman (1988) 46 Cal.3d 749, 777.) In the absence of such an objection, the juvenile court had no duty to make an express ruling based upon a weighing of relevance and prejudice under Evidence Code section 352. (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Anderson (1990) 52 Cal.3d 453, 477.) This is not a situation in which the substance of an objection was made, and we can undertake review even though the form of the objection was technically incorrect. (Coleman, at p. 778.)
Even if we assume the issue had been preserved for review (or assume counsel was ineffective in failing to object), minor cannot establish either that the evidence was improperly admitted or that it resulted in any prejudice.
Evidence of prior crimes is not admissible to prove the defendant’s propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a).) However, other crime evidence is admissible when relevant to prove some fact other than disposition to commit a crime, such as intent, preparation, planning, knowledge, identity, or absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) To prove identity, the uncharged crime must be highly similar to the charged offense. (People v. Kipp (1998) 18 Cal.4th 349, 369.) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Inference of identity arises when the markers common to the charged and uncharged offenses, considered singly or in combination, set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, suggest that the perpetrator of the uncharged offense was the perpetrator of the charged offense. (People v. Beamon (1973) 8 Cal.3d 625, 633.) The strength of the inference depends upon two factors: (1) the degree of distinctiveness of shared marks; and (2) the number of minimally distinctive shared marks. (Kipp, at p. 370.)
An additional requirement for the admission of uncharged crimes is that the probative value of such evidence must outweigh its prejudicial effect under Evidence Code section 352. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) On appeal, the trial court’s determination of this issue is reviewed for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 369.) We do not substitute our judgment for that of the trial court on appeal. We only grant relief where an abuse of discretion amounts to a miscarriage of justice. In this context, a miscarriage of justice occurs when it is reasonably probable that the jury would have reached a result more favorable to defendant, absent the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the prosecutor offered the prior crime evidence to prove identity. The prior fire evidence and the fire at Ladera share numerous distinctive characteristics. The manner in which minor and Christian started the fires in minor’s backyard was identical to the manner in which they started the fire in the current case at Ladera. The evidence showed that the fire at Ladera was started by the use of papers and gasoline. The evidence of minor’s prior conduct established that on at least one or two prior occasions, minor and Christian started fires in minor’s backyard using paper and gasoline from minor’s garage. In fact, Officer Grizwa began to investigate minor and Christian because of the similarities in the fire-starting conduct. We find the distinctiveness of these characteristics sufficient to support the inference that minor committed both acts, particularly given the close proximity in time. We reject minor’s contention that “there is a vast difference between two children setting small backyard fires and two children setting a school on fire.” When considered in combination with each other, these identical features of the fires suggest the same perpetrators. Indeed, an identical perpetrator and identical victim in both the charged and uncharged offenses alone has been held distinctive enough to admit other crime evidence on identity. (People v. Beamon, supra, 8 Cal.3d at p. 633.) Therefore, the evidence was relevant on the issue of identity and we find no abuse of discretion.
Since the prior crime evidence was admissible as to identity, its admission must be evaluated under Evidence Code section 352. The issue of identity was important in this case because minor denied he committed the crime. Christian, at trial, also denied that either he or minor committed the crime; he testified that he thought the officer was talking about the fires in minor’s backyard when he admitted to setting the fire. Indeed, “[i]dentity of a defendant charged with a crime is the ‘guts’ of any prosecution for the crime charged.” (People v. Rogers (1985) 173 Cal.App.3d 205, 213.) Though Christian admitted that he and minor committed the Ladera fire when he spoke to Officer Grizwa and the principal, Christian recanted his out-of-court statements at trial. Therefore, this evidence was highly probative in establishing the identity of the perpetrator. The risk of prejudice was minimal here. The fire setting in minor’s backyard is the same crime, if not a less inflammatory crime, than the fire at the school. This reduced any tendency for the trier of fact to punish minor for the fire in his backyard regardless of his guilt for the Ladera fire. Therefore, we find that the potential for prejudice was outweighed by the probative value of the evidence.
Finally, even if we assume that the admission of the prior crimes was erroneous, we cannot find that it caused a miscarriage of justice, since there was abundant other evidence to show minor and Christian started the Ladera fire. As previously noted, Christian repeatedly admitted that minor and he committed the Ladera fire. Their ex-friend Salvador also testified that he, Christian, and minor were at Ladera and that he (Salvador) had left prior to the Ladera fire. Given the strength of the evidence, the juvenile court could reasonably have concluded that minor committed the Ladera fire absent the prior crimes evidence. Thus, there was no reasonable probability that an outcome more favorable to minor would have resulted had the prior crimes been excluded.
C. Wrongfulness of Act
Lastly, minor contends that the People failed to establish by clear and convincing evidence that minor knew the wrongfulness of his act when he committed it, and that the record contains insufficient evidence to satisfy the requirement of Penal Code section 26.
Only those minors “under 14 who—as demonstrated by their age, experience, conduct, and knowledge—clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system.” (In re Manuel L. (1994) 7 Cal.4th 229, 231-232 (Manuel L.).) Penal Code section 26 therefore provides, in relevant part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (See also In re Gladys R. (1970) 1 Cal.3d 855, 864 [“[Penal Code] [s]ection 26 embodies a venerable truth, which is no less true for its extreme age, that a young child cannot be held to the same standard of criminal responsibility as his more experienced elders”].) Penal Code section 26 “articulates a presumption that a minor under the age of 14 is incapable of committing a crime.” (Manuel L., at p. 231.) To rebut this presumption, the People must provide “clear proof” that the minor knew the act’s wrongfulness at the time of commission. (Ibid.)
Our review here is governed by the same substantial evidence standard articulated in part II, A., ante. (In re James B. (2003) 109 Cal.App.4th 862, 872.) In making a determination under Penal Code section 26, the juvenile court may rely on circumstantial evidence, including the minor’s age, experience, and understanding, as well as the circumstances of the offense, including its method of commission and concealment. Additionally, the closer the minor is to the age of 14, the more likely he is to appreciate the wrongfulness of his actions. (Manuel L., supra, 7 Cal .4th at pp. 232-233; see also In re Jerry M. (1997) 59 Cal.App.4th 289, 298; People v. Lewis (2001) 26 Cal.4th 334, 378.)
Minor contends there is insufficient evidence to support the conclusion that he understood the wrongfulness of his actions at the time of the incident. He points to the court’s purported “flawed” logic when the court noted that minor and Christian had “stolen” gasoline from minor’s garage on prior occasions and the court’s statement that it found Christian’s trial testimony to be “totally lacking in credibility.”
Initially, minor is mistaken that the court found Christian’s testimony to be “totally unworthy of belief on any issue,” including Christian’s out-of-court statements that he and minor ran from the fire. The court only found Christian’s in-court statements to be “totally lacking in credibility”; it found Christian’s out-of-court statements to Officer Grizwa and the principal to be credible. The court explained, “[T]he reason that I find [Christian’s out-of-court statements] to be credible is that there was a degree of conformation to the truthfulness of those statements.”
The entirety of the circumstances demonstrate substantial evidence to support a finding that minor understood the wrongfulness of his conduct. Minor ran from the scene of the crime (though it can be inferred that he and Christian ran due to the fire getting out of control). Nonetheless, besides running from the fire, there was substantial evidence that minor tried to conceal the crime. In fact, he, Christian, and Salvador fought about whether or not to conceal the crime or to speak with the police. When they were seen at their school having an argument, they were taken into the principal’s office. Upon being questioned by the principal about the argument, the principal was informed that they were fighting about whether they should talk to the police officer who was investigating the Ladera fire. The juvenile court could deduce from this evidence that minor understood that starting the Ladera fire was wrong and that Christian’s conversation with the police officer would lead to minor getting in trouble.
In addition, minor continued to deny responsibility for his actions, both to the principal and the officer. Minor’s actions in evading responsibility for the fire demonstrates an inference that he was aware that what he did was wrong. (People v. Lewis, supra, 26 Cal.4th at p. 379.) Further, the taking of the gasoline can out of minor’s garage, whether it can be characterized as an act of theft or mere availability, indicates preparation in committing the crime and is another factor surrounding the circumstances of the crime. While not direct evidence of minor’s mental state, this evidence was circumstantial evidence indicating that minors of a certain age would know such activity was wrongful.
On the whole, it was reasonable to conclude that an 11 year old would know that this activity was wrong and that this 11 year old, in particular, did. Hence, reviewing the record in the light most favorable to the trial court’s judgment, we cannot say the court’s finding on this point was not supported by clear, convincing, and substantial evidence. (See In re Jerry M., supra, 59 Cal.App.4th at pp. 297-298.)
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.