Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ05000586.
Ruvolo, P. J.
T.D. (appellant) appeals from a jurisdictional order sustaining a petition under Welfare and Institutions Code section 602, subdivision (a). He argues substantial evidence did not support the order below. We affirm.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
I. PROCEDURAL BACKGROUND
On July 31, 2007, the district attorney filed the instant wardship petition against appellant under section 602, subdivision (a) alleging one count of burglary (Pen. Code, § 459). A one-day contested jurisdictional hearing followed on October 9. After respondent’s case-in-chief, appellant moved to dismiss under section 701.1. Subsequent to argument, the court denied the motion. The same day, the court found the allegation of burglary true, and at a dispositional hearing on December 12, the court declared appellant a ward of the court, placed him on probation and ordered him to complete 100 hours of community service. Appellant’s juvenile record includes one prior incident.
All subsequent undesignated date references are to the year 2007.
A wardship petition under section 602 was filed on February 15, 2005, alleging one count of violation of Penal Code section 243.2 (fighting at school). The court ordered appellant placed on informal probation pursuant to section 654.2. It appears that after completion of an aggressive offender program, and 50 hours of community service, on November 15, 2005, the court dismissed both the informal probation (§ 654.2) and the petition for wardship (§ 602).
II. ACTUAL BACKGROUND
Brandon Combs lived on Pacific Avenue in Alameda at the corner of Pacific and Paru. On July 28, he was contacted by police and told that a witness saw someone entering his home through a window. After he arrived home, Combs found that parts of the interior of his home were “messed up, in disarray” and he noticed several items missing. He had not given anyone permission to enter his home or to take his property.
Among the missing items were a Fender electric guitar, a Fender bass guitar, a Sony Handycam, and a DVD player.
At approximately 2:30 p.m. on July 28, Chris Cuoco was in the passenger seat of a car driven by his girlfriend. From the passenger seat, Cuoco saw two Asian males at the house on the corner of Paru and Pacific in Alameda where Combs lived. One of the two males wore a white shirt, and the other wore a black shirt. The person in the white shirt pried off the screen from a window of the victim’s house, while the person in the black shirt was “like, looking around to see if anybody was coming.” As Cuoco passed by the two, he continued to watch “because I seen [sic] them [sic] going for the screen.” He turned and continued to watch over his shoulder as he passed by them.
Cuoco could not describe any distinguishing feature about either person beyond the fact that one wore a white shirt and the other wore a black shirt.
Although he never saw the face of the person in the white shirt, Cuoco did see the person in the black shirt and recognized him from school. Cuoco identified the person in the black shirt to the police as appellant.
Cuoco testified that “I was focused on [the person in the white shirt], but since I had already known [sic]—like I had—I already know what [appellant] looks like. I didn’t know his name but—so I didn’t really have to focus on him because I already knew who he was.” “So basically, I was focusing on the dude in the white shirt.”
Cuoco’s girlfriend parked the car about four houses away from the victim’s house at the corner of Paru and Pacific and they both went inside. At this point Cuoco did not call the police because he thought, “like, maybe they forgot their keys or something and they were trying to get back in the house.” Cuoco ate something inside and then between 5 and 10 minutes later exited the house to investigate. Walking down the block, he did not see anything; however, he continued to stand outside a little longer.
At approximately 3:00 p.m. Cuoco “seen [sic] them come out of the house,” with nothing in their hands. At this point, the individuals were between half and three quarters a football field away, and partially obstructed by a car, over which Cuoco looked. At this distance and from this vantage point, he could not see their faces. He could only identify them by the color of their shirts.
Following this, Cuoco went inside and told his girlfriend to call the police. He did this because “I’ve been to my girlfriend’s house a few times, and I noticed that . . . white people live there, so I was wondering why Asian—like an [sic]—Asian people were, like, going through the window and everything and coming out the front door.” Eventually Cuoco got on the phone. The emergency operator directed him to the nonemergency number. While on the phone with the nonemergency operator, Cuoco did not identify anyone by name nor did he state that he went to school with one of the individuals. Cuoco indicated to the nonemergency operator that he recognized the person in the black shirt as somebody who “hang out” on a corner of Pacific. However, he did not identify either of the two as someone with whom he went to Alameda High School.
The police arrived 10 or 15 minutes later and Cuoco presented them with a page from an Alameda High School yearbook. Cuoco had circled appellant’s picture, signed, and dated the page to identify appellant as the individual he saw on the corner.
Police officers drove to appellant’s residence and located him at home. Appellant denied any involvement in the burglary, and appellant’s mother consented to a search of their apartment. No loss from the burglary was recovered as a result of the search. Around 3:45 p.m., the police transported Cuoco to a field show up to identify the person he saw on the corner and exiting the house. At that field show up, Cuoco identified appellant.
Cuoco testified that although he and appellant went to high school together, they were in different grades, they never had a class together, and they never interacted. However, they had mutual friends. He also stated he had no reason to identify appellant falsely, they had no conflicts, and he had no reason to testify falsely about questioning his initial identification.
About a month or a month and a half after the incident, an investigator, Stephany Greer (Greer), contacted Cuoco. He told Greer he was “100% positive” of his initial identification of the appellant. However, after his meeting with Greer, Cuoco began to question the accuracy of his original identification. While at a supermarket he saw a person sitting on a bench he thought was appellant, but on closer inspection, he realized it was not appellant.
Cuoco attempted to contact the Alameda Police Department, the district attorney’s office and the investigator in order to amend the original statement identifying appellant. All attempts were fruitless.
At the jurisdictional hearing, Cuoco testified he was “maybe a little over half” sure that he correctly identified appellant in the first place.
Appellant’s father and sister testified as alibi witnesses. Father testified that from between approximately 10:00 a.m. until the time when the police arrived, he was in the kitchen cooking or in the living room reading the newspaper, or cleaning the apartment. He testified appellant did not leave the apartment, because from his vantage point he would have seen or heard if somebody left the apartment. Sister testified that she saw appellant when he came into her room to use the computer in the afternoon, and once when he passed by her room to use the restroom. She also testified she was “a [sic] hundred percent” sure appellant did not leave the apartment because she would have heard the door close had appellant left the apartment.
Finally, sister testified at the time of the burglary appellant had a distinctive hairstyle: a shaved head with a tail “like 12 inches” long. There is no evidence that Cuoco ever mentioned this distinctive hairstyle to the police.
III. DISCUSSION
“[O]n this appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition . . . we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
The test on appeal is whether substantial evidence supports the trial judge’s conclusion. (People v. Johnson (1980) 26 Cal.3d 557, 576.) To be substantial, evidence must be credible, reasonable and of “ ‘solid value’ ” such that a “ ‘reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151.) Where substantial evidence supports the decision below, due process concerns are satisfied. (People v. Boyer (2006) 38 Cal.4th 412, 480.)
On review, we must view the evidence in the light most favorable to the decision below. (People v. Johnson, supra, 26 Cal.3d at p. 576.) We “presume every fact [the judge] could reasonably have deduced from the evidence. [Citations.]” (People v. Boyer, supra, 38 Cal.4th at p. 480.) Moreover, we review the entire record, not merely parts highlighted by the parties. (People v. Johnson, supra, at p. 576.) “[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874; see In re Ryan N., supra, 92 Cal.App.4th at p. 1373 [“The juvenile trial court was the trier of fact and the sole judge of the credibility of witnesses; we are not.”].) “In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (In re Ryan N., supra, at p. 1373, original italics.)
Appellant contends the factual finding below is not supported by substantial evidence, since the only evidence connecting appellant to the burglary is a prehearing identification at trial only ambivalently asserted at the hearing. “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) It is for the trier of fact to weigh issues of credibility. (People v. Boyer, supra, 38 Cal.4th at p. 480.) In this instance, whether the witness’s first identification was credible or the witness’s subsequent doubt about his prior identification was credible is a question reserved for the trier of fact. (See People v. Jones, supra, at pp. 314-315 [“it is not a proper appellate function to reassess the credibility of the witnesses.”].)
The evidence in support of the finding below is substantial. Cuoco identified appellant to the police by picking him out of the high school yearbook. The officer driving Cuoco to the field show up admonished him about the importance of a correct identification. “[T]hat it was just as important to free somebody who is innocent as it is to find the guilty party.” Cuoco identified appellant at the field show up as the person he saw at the corner of Paru and Pacific less than two hours after seeing appellant “like, looking around to see if anyone was coming.” In his statement to the police he wrote, “The guy I recognized was [appellant]. I’m positive it was him.”
Approximately a month after the incident, Cuoco told the investigator that he was “a [sic] hundred percent positive” about his prior identification. At the jurisdictional hearing, Cuoco testified he could not think of any reason he would have identified the appellant at the time if he were not sure about it. Moreover, at the hearing when asked to identify the person he saw commit the burglary, Cuoco identified appellant without hesitation: “Gray sweatshirt, sitting next to that woman there.”
Although later at the hearing Cuoco testified that he was “maybe a little over half” sure he correctly identified appellant initially, the judge was not required to give his testimony greater weight than his prior identification. (See People v. Cuevas (1995) 12 Cal.4th 252, 276-277 [finding of guilt premised on witness’s later recanted testimony held substantial evidence].)
Our Supreme Court has stated “the identifying witness’s prior familiarity with the defendant” was a factor tending to affect the reliability of an out of court identification. (People v. Cuevas, supra, 12 Cal.4th at p. 267.) Since the witness was familiar with appellant’s features from school, the judge could reasonably find the witness’s prior identification to be both accurate and reliable. (See ibid.)
In People v. Cuevas, supra, witnesses made out-of-court eyewitness identifications, and then changed their stories at trial. (12 Cal.4th at pp. 259-260.) The prosecution introduced evidence to show gang culture and membership motivated this change. (Ibid.) An expert testified that gang members generally disapprove of cooperating with the police even when the target was a rival gang. (Ibid.) Appellant argues that in the instant case the prosecution failed to show the witness’s motive to change his testimony, therefore the prior identification is not substantial evidence. However, the prosecution was not required to make such a showing where there exist other factors indicating the prior identification is reliable. (See People v. Cuevas, supra, at pp. 267-268 [discussing various indicia of reliability that “may attend an out of court identification and affect its probative value”].)
In the instant case, Cuoco’s prior familiarity with appellant is relevant to prove the accuracy of his original identification. (See People v. Cuevas, 12 Cal.4th at p. 267.) The court could reasonably base its finding on this past familiarity with appellant, and conclude that Cuoco’s initial, positive identification was the correct identification.
Although appellant introduced testimony from his family to substantiate his alibi defense, the judge was not obligated to believe it. “[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards, supra, 150 Cal.App.3d at p. 874.)
In sum, because a reasonable trier of fact could have found true the charge of burglary beyond a reasonable doubt, substantial evidence supports the order of the juvenile court.
IV. DISPOSITION
The order of the juvenile court is affirmed.
We concur: Reardon, J., Sepulveda, J.