Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD060157. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.)
Carol A. Koenig, 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, Louis M. Vasquez, Lloyd G. Carter, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Vartabedian, Acting P.J., Cornell, J., and Dawson, J.
STATEMENT OF CASE
On August 1, 2008, appellant, R.P., was charged in a first amended petition, pursuant to Welfare and Institutions Code section 602, subdivision (a), with second degree robbery (Pen. Code, 211, count one), participation in a street gang, a felony (§ 186.22, subd. (a), count two), and felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count three). The petition further alleged appellant committed counts one and three for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of count three. The prosecutor noticed appellant that the People would seek to aggregate the terms of all previously sustained petitions to increase appellant’s maximum term of confinement.
Unless otherwise designated, all statutory references are to the Penal Code.
Appellant had prior adjudications in 2006 for misdemeanor possession of a weapon (§ 12020, subd. (a)), misdemeanor battery on school or park property (§ 243.2, subd. (a)(1)), misdemeanor battery (§ 242), and misdemeanor fighting (§ 415). Appellant had adjudications in 2007 for misdemeanor use or theft of a vehicle (Veh. Code, § 10852), misdemeanor vandalism (§ 594, subd. (a)), and resisting arrest, a misdemeanor (§ 148, subd. (a)(1)). Appellant had a felony adjudication in 2007 for receiving stolen property (§ 496, subd. (a)).
A contested jurisdictional hearing began on September 23, 2008. After the presentation of the prosecution’s case as to the robbery allegation, appellant waived his rights and admitted count three. In exchange for appellant’s admission, the enhancements on count three were dismissed. On September 25, 2008, the juvenile court found count one true. The court did not find the gang allegations true.
On October 28, 2008, the court found appellant a ward of the court and committed him to the Division of Juvenile Facilities, DJF, for a total term of six years eleven months.
DJF was formerly known as CYA. (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
FACTS
On May 8, 2008, G.R. and J.H. were sitting on a couch in J.H.’s garage. They had just finished assembling a BMX racing bicycle and leaned it against a car outside the garage. The garage door was open. Two friends, M.W. and M.R., ran into the garage looking scared. Two males followed M.W. and M.R. One entered the garage, the other stayed behind the car. The male that approached had his shirt over his face and asked if they wanted to die that evening.
Because the only issue on appeal concerns the robbery adjudication, we do not recount the facts of count three, the assault allegation.
The shirt covered the person making the threat up to his nose. He further stated that he was “not fucking around.” The other male took G.R.’s bicycle. G.R. told him to stop. The other male, however, kept on riding away on the bicycle. Both males looked familiar to G.R. He had seen them around. At the hearing, G.R. was not sure if appellant was one of the males. G.R. denied being afraid to testify. G.R. told an investigating police officer the robbers were C.P. and appellant.
G.R. acknowledged he was able to identify the robbers from photographs shown to him by the police. G.R. identified appellant in court. G.R.’s bicycle was worth $940. During cross-examination, G.R. stated he was not sure whether C.P. was one of the robbers or one of C.P.’s brothers. G.R. did, however, see appellant on a regular basis.
M.W. testified on May 8, 2008, he was walking with M.R. and got into a conflict “with some people” that began with an exchange of words. M.W. did not remember what words were exchanged and reviewing the police report did not refresh his recollection M.W. acknowledged telling the police that when he encountered the two individuals, they said “You can’t fuck with Norte[.]” M.W. reported hearing that one of these individuals was carrying a handgun. The individuals chased M.W. and M.R. into a garage and one of them said, “You’re going to die tonight[.]” The person who made the statement put his shirt over his face. !(RT 135)! M.W. did not see the second robber.
M.R. testified that he and M.W. were walking when two guys thought M.R. and M.W. were giving them a hard time. The two guys came at M.R. and M.W. harshly, asking if they wanted to fight. M.R. heard one of them say they were going to shoot M.R. and M.W. M.W. began to run away. M.R. followed him. They ran to J.H.’s garage. The two assailants showed up about 30 seconds later. The assailants threatened to kill everyone, grabbed G.R.’s bicycle, and “took off.” M.R. was not able to identify either assailant to the police.
Detective Rafael Vasquez of the Farmersville Police Department testified he was on duty at 9:00 p.m. on May 8, 2008. Vasquez was dispatched to a residence on North Shasta and contacted G.R., M.R., and M.W. G.R. told Vasquez M.R. and M.W. ran into the garage. A minute or so later, two other individuals showed up and began making threats. G.R. said he was 100 percent positive about the identity of the two individuals because he went to school with them. Vasquez showed G.R. photographs. From the photographic lineup, G.R. was able to confidently identify R.P., the appellant. Only G.R. was able to identify the robbers. The juvenile court found substantial evidence that appellant participated in the robbery of G.R.’s bicycle.
DISCUSSION
Appellant contends there was insufficient in-court evidence identifying him as a robber. We disagree and will affirm.
In People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas), the California Supreme Court overruled the rule it had adopted in People v. Gould (1960) 54 Cal.2d 621, 631 that an out-of-court identification of the defendant that the identifying witness cannot or will not confirm at trial is not sufficient to sustain a conviction. Instead, the court held, the “substantial evidence test” should be used to determine whether an out-of-court identification is sufficient. (Cuevas, supra, 12 Cal.4th at p. 272.)
An appellate court, in applying this test, must examine the whole record in the light most favorable to the judgment to determine if 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. Appellate courts presume 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.) 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, 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 reviewing court’s opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Under the substantial evidence test, the probative value of the identification and whatever other evidence there is in the record are considered together to determine whether a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt. This provides protection against a questionable out-of-court identification. (Cuevas, supra, 12 Cal.4th at p. 274.)
The court in Cuevas noted that “an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification....” (Cuevas, supra, 12 Cal.4th at p. 265.) Unlike an identification at trial, an out-of-court identification is made before “ ‘the suggestions of others and the circumstances of the trial may have intervened’ ” to influence a witness’s identification. (Ibid.) The court identified factors which may affect the significance of the witness’s failure to identify the defendant at trial, including “whether... the witness’s failure to confirm the identification arises from fear or intimidation.” (Id. at p. 268.) The court similarly identified factors that may affect the reliability of an out-of-court identification, including “the identifying witness’s prior familiarity with the defendant.” (Id. at p. 267.)
Here, notwithstanding G.R.’s inability to identify appellant as the person who stole his bicycle during the hearing, G.R. acknowledged identifying appellant to Detective Vasquez. Appellant had gone to school with appellant and saw him around on a regular basis. According to Detective Vasquez, G.R. was 100 percent certain of his identification of appellant. G.R. made his out-of-court identification of appellant shortly after the incident. The court reasonably could have relied on the testimony of Detective Vasquez, which was partially corroborated by G.R. himself, even though G.R. did not make an in-court identification. On this record, substantial evidence supported the finding that appellant committed the instant offense.
G.R. identified appellant during his testimony, but did not remember whether appellant was a perpetrator.
DISPOSITION
The judgment is affirmed.