Opinion
A150528
03-08-2018
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J42725)
Minor J.G., already a ward of the court, was committed to Challenge Academy for a maximum term of five years four months after the juvenile court found he committed grand theft and two counts of second degree commercial burglary. The charges arose from the break-in of a medical marijuana dispensary, which was captured on video by several dispensary surveillance cameras.
On appeal, minor contends there was insufficient evidence he was the perpetrator of the burglary, the juvenile court relied on inadmissible, unauthenticated video recordings, and there was insufficient evidence that two burglaries occurred. He also raises errors in the disposition.
We reject minor's claims of insufficiency of the evidence. However, we will reverse the dispositional order and remand so that the juvenile court can (1) declare whether grand theft is a felony or a misdemeanor, (2) determine whether the term for one of the burglary offenses should be stayed under Penal Code section 654, and (3) stay the term for grand theft under section 654.
FACTUAL AND PROCEDURAL BACKGROUND
The manager of a marijuana dispensary in Vallejo arrived at work one morning to discover a window pane next to the front door had been kicked in and the alarm system had been set off. The manager reported the break-in to the Vallejo Sheriff's Department and waited in her car for law enforcement to arrive.
When an officer arrived at the dispensary, he accompanied the manager into the building to make sure no one was inside. The dispensary had at least 30 video cameras located inside and outside the building, and the manager and the officer viewed surveillance video from earlier that morning. Reviewing the footage, they "pretty much watched the entire break-in happen."
In the "bud room" of the dispensary, the manager found six of the register drawers were popped open. The registers usually held $150 in change, and all the $1 and $5 bills had been taken from those registers. The perpetrator also took flowers and concentrates from the bud room and two tasers and a bulletproof vest from the security podium in the lobby. According to the manager, roughly $600 in cash was taken and the marijuana taken was worth at least $6,000.
At the jurisdictional hearing, the prosecutor relied on the manager's testimony and surveillance video recorded the morning of the break-in. The prosecutor played clips of surveillance video taken from eight cameras, which provided views of the sidewalk and street on which the dispensary was located, the parking lot and entrance to the dispensary (i.e., the front door where the perpetrator had broken the window pane), the lobby or reception area that the front door opened into, the security podium in the lobby, and the bud room. She argued the video clips showed minor break a glass window, enter the business, leave and go inside again, and "during this time [minor] stole a taser, body armor and marijuana." A DVD containing the surveillance video clips was admitted into evidence.
Minor did not present any witnesses or other evidence, arguing the only evidence was "a grainy video" that was insufficient to show minor committed the charged offenses.
Following the presentation of evidence, Judge Donna Stashyn stated that she "couldn't make an identification" of the perpetrator "from where [she] was sitting and looking at the screen across the court." The prosecutor urged the court to watch the video clips again. "I think if the Court looks closely at the video, specifically, the portion where the minor is at the security desk with his hood down, the Court could see the hairline, the face, facial structure. There was no question that . . . it was this minor that commit[ted] the burglary."
The next day, Judge Stashyn announced her decision. After reviewing the video clips, the judge was able to identify minor as the perpetrator. She explained, "There is the side view and there is a front view, and in looking at that again last night and looking at [minor in the court room] today and yesterday, the distinctive hairline is persuasive as well as his facial features. There was no doubt that he was the [perpetrator] who twice entered the business and stole property during that evening."
DISCUSSION
I. Sufficiency of the Evidence
Minor argues there was insufficient evidence that he was the perpetrator because there was no evidence connecting him to the incident and because the juvenile court relied on inadmissible, unauthenticated video recordings. He also contends there was insufficient evidence to support more than one count of burglary.
A. Standard of Review
"The standard of review in juvenile proceedings involving criminal behavior is the same as that required in adult criminal trials: We review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the charge, so that a reasonable trier of fact could find guilt beyond a reasonable doubt." (In re M.V. (2014) 225 Cal.App.4th 1495, 1518.) Reversal is unwarranted unless " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Evidence Connecting Minor to the Incident
Minor first argues there was insufficient evidence that he was the perpetrator of the charged offenses "because there was no evidence connecting [him] to the burglary." He points out there was no confession, no evidence of stolen property found with minor, and no fingerprint or shoeprint evidence connecting him to the dispensary.
Minor's argument seems to ignore the primary evidence in this case. Surveillance video clips, which were played for the court and entered into evidence, show minor breaking the window pane next to the front door, entering the dispensary, leaving, entering again, going through items in the bud room, and running out of the dispensary clutching a full bag. These video clips clearly constitute evidence connecting minor to the charged offenses.
" 'Evidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) "Writings," in turn, include video recordings with imprinted data. (Id., § 250; People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) Evidence "includes anything offered in evidence whether or not it is technically inadmissible and whether or not it is received." (Cal. Law Revision Com. com., Evid. Code, § 140.) There can be no dispute that the video clips were evidence in this case.
Minor attempts to explain his argument in his opening brief as follows: "[T]he prosecution left an evidentiary gap since there was no identity testimony. . . . The court's own review of the surveillance files after the jurisdictional hearing and personal conclusion that they depicted [minor] does not fill that gap because it does not constitute sworn evidence. I.e., there is no evidence by which this Court can assure itself that the judgment is justified. To affirm the judgment in this case, the Court would essentially have to take the juvenile court's word for it, that on [the date of the break-in, minor's] appearance was consistent with the subject depicted in the video."
In his reply, he further argues: "While the video disc with content from the surveillance cameras was admitted into evidence, the reviewing court cannot verify whether the evidence supports the juvenile court's later finding that [minor] was depicted in the videos because there is no evidence regarding [minor's] appearance at the time of the incident. It would violate due process and the right to confrontation to simply accept the juvenile court's unsworn, non-cross-examined conclusion that upon independent review of unspecified and possibly un authenticated videos[,] it believed that [minor] was the burglar."
We are not persuaded. Our high court has "long approved the substantive use of photographs as essentially a 'silent witness' to the content of the photographs. (Goldsmith, supra, 59 Cal.4th at p. 267.) To hold otherwise, the court explained, " 'would illogically limit the use of a device whose memory is without question more accurate and reliable than that of a human witness. It would exclude from evidence the chance picture of a crowd which on close examination shows the commission of a crime that was not seen by the photographer at the time. It would exclude from evidence pictures taken with a telescopic lens. It would exclude from evidence pictures taken by a camera set to go off when a building's door is opened at night.' " (Ibid.) To the extent minor posits that surveillance video by itself can never establish the identity of a perpetrator, he offers no authority for this position, and we decline to adopt such a new rule.
In Goldsmith, the defendant was cited for failing to stop at a red light based on evidence of several photographs taken by an automated traffic enforcement system (ATES). (Goldsmith, supra, 59 Cal.4th at p. 262.) The defendant argued the photographs did not establish she was the driver of the car shown in the photographs "because the right eye and part of the forehead of the person shown in the photograph was obscured," but the trial court "was satisfied that the photograph depicted defendant as the driver." (Id. at p. 265.) On appeal, the defendant in Goldsmith did not challenge the trial court's finding that she was the driver in the photographs (and actually conceded at oral argument before the Supreme Court that she was the driver); instead, she contended the ATES evidence should have been excluded based on failure to authenticate and because it contained inadmissible hearsay (referring to the data bar information imprinted on the photographs). (Id. at pp. 266, 271-273.) Minor argues Goldsmith is inapposite to the issues raised in his appeal. Nevertheless, Goldsmith is an example of photographs alone serving as evidence to establish identity.
Minor claims there was "an evidentiary gap since there was no identity testimony" in this case. But "evidence" includes "sights (such as a jury view or the appearance of a person exhibited to a jury)." (Cal. Law Revision Com. com., Evid. Code, § 140.) Here, the judge as the trier of fact properly identified minor as the perpetrator based on her review of the surveillance video (a "writing" constituting evidence) and her observation of minor at the hearing (a "sight" constituting evidence). There was no evidentiary gap.
To the extent minor argues the judge became a witness in the case because she reviewed the video evidence after the hearing, he is mistaken. Minor suggests that, in order for the judge's identification of minor in the surveillance video to comport with due process, the judge must be subject to cross-examination, but he cites no authority for his argument. A finder of fact does not become a witness merely because she considers the evidence. As the Attorney General points out, minor could not expect to "cross-examine jurors after they retired for deliberations on the evidence."
Finally, we reject minor's suggestion that the appellate record is inadequate because the record does not contain evidence showing what minor looked like at the time of the break-in or at the time of the jurisdictional hearing. At the jurisdictional hearing, defense counsel argued the "grainy video" was insufficient to show minor committed the charged offenses. We have reviewed portions of the video clips contained on the DVD admitted into evidence, and we are satisfied that they depict the perpetrator, including the shape of his head, his face, hairline and profile, and his frame and build, with sufficient clarity and in enough detail to allow the judge as finder of fact to identify minor—who was present and observable in the courtroom during the hearing—as the subject of the surveillance videos.
To the extent minor advocates that independent evidence of a defendant's likeness in the appellate record is required in order to affirm a trier of fact's identification of the defendant as the perpetrator, he, again, cites no authority for this position, and we decline to adopt such a blanket rule.
C. Admission of the DVD Containing Surveillance Video
Minor next argues there was insufficient evidence he was the perpetrator of the break-in because the juvenile court relied on inadmissible, unauthenticated video recordings. We disagree.
1. Background
During the manager's testimony, the prosecutor played video clips taken from eight surveillance cameras that showed the break-in as it occurred from different views inside and outside the dispensary. Initially, defense counsel objected "to viewing the video until a proper foundation has been laid." The prosecutor then elicited testimony from the manager that the video clip being played for the court at that time was surveillance video taken from a camera at the dispensary on the day of the break-in, and the juvenile court overruled defense counsel's objection.
Defense counsel stated that he had "seen this discovery," and understood there were "a bunch of different videos." He said, "I would be making an objection, for the record, a continuing objection to ... all the different videos, as opposed to each one, so I will continue to object, to a foundation issue, just a general objection." The juvenile court instructed the prosecutor, "If you're going to be switching from screen to screen, make sure you lay a foundation." The prosecutor then asked the manager to authenticate each different camera view when it was first played. Apparently satisfied with the authentication testimony, defense counsel later informed the court he had "no objection to the specific videos that were actually shown to the Court."
However, defense counsel objected to admission of the DVD containing the video clips played for the court because "not every video is authenticated" as there were video files on the DVD that had not been played in court and therefore had not been specifically authenticated by the manager. The prosecutor responded that she played at least one clip of each camera view, and in each camera view the court could see the time and date stamp on the video. The court stated it had taken notes on the video clips that were played and had "writ[ten] down times that correlated with activity, some activity regarding a person," but there was no mention of what was in the video files that were not played in court.
We note that each of the eight camera views has a time and date stamp indicating that the recording was made on the date of the break-in. The four views taken outside the building show times from 5:50 a.m. to shortly after 6:00 a.m. The four views recorded inside the dispensary show times from 2:50 a.m. to shortly after 3:00 a.m. The manager testified the cameras may have been set to different time zones, but she was "not really sure what is going on there."
Defense counsel acknowledged that he had received "an entire copy of what these files were selected from," presumably meaning he had received a copy of the DVD that the prosecutor was offering into evidence. But he maintained his objection to admission of the DVD, stating, "Since the Court has seen it . . ., I don't think there is a reason for the Court to actually have a physical disc."
The prosecutor argued the court would want to look at the video clips on the DVD again because "there is video of the clear face shot that shows the minor." She said discrepancies in the time stamps on the different videos could be resolved "by seeing that in one video, the same person that is walking by and going into and motioning with the foot into the inside of the dispensary, that view shows 5:[50] . . . . Whereas the camera from inside that shows the same action, and the Court can see that even though the camera has 2:50 something, it's the same incident that is being recorded by the cameras." (See footnote 4.) The prosecutor told the court, "I'm not expecting the Court to look at anything that was not testified to." She explained that the surveillance video files on the DVD that were not shown in court were not relevant as they depicted nothing "other than the view of their empty room."
The court admitted the DVD with the following limitation: "The Court did see some portions [of video] that were described and certain foundation [was] established as to portions of those. Unfortunately, the record does not reflect that. I took notes as to what I was looking at and what I wrote down, but upon review, there would be no way for someone to necessarily see which portions are being referred to with some of the differences in time. [¶] The Court will allow with those limitations. . . ."
2. Analysis
Minor agrees that defense counsel did not object to the admission into evidence of the video clips that were played in court. He recognizes that the video clips that were played in court were authenticated as to location. At the jurisdictional hearing, when the prosecutor explained she had played at least one video clip of each of the eight camera views contained on the DVD, defense counsel agreed, stating the prosecutor's "representation was correct." Minor further acknowledges that he "has not claimed that the video clips on the DVD containing surveillance videotapes are not reliable copies of the information stored in the surveillance cameras."
Minor asserts the video clips were not authenticated as to the time they were taken because the time stamps for the four exterior camera views are three hours ahead of the time stamps on the four interior camera views. We would add that the manager's testimony established the date and general timeframe the recordings were made (early morning on the day of the break-in) as well as their location.
Minor's only objection on appeal is to the admission of surveillance video files that were not played during the jurisdictional hearing. As to these video files, he claims "no authentication was provided and . . . [minor] did not have the opportunity for confrontation and cross-examination of any witness."
Minor also claims defense counsel did not have the opportunity to review the video files on the DVD that were not played in court. But defense counsel acknowledged at the jurisdictional hearing that he had received "an entire copy" of the DVD.
However, given that at least one video clip of each of the eight camera views was played for the court and authenticated, we conclude there was sufficient foundational evidence to admit all of the video clips contained on the DVD. "The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (Goldsmith, supra, 59 Cal.4th at p. 267.) Here, once the manager authenticated a video clip taken from a particular camera view, a trier of fact could reasonably find that other video clips showing the dispensary from the same camera view (but at a different time) were what they purported to be. (See People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 [authenticity of a writing may be established by contents of the writing].) Accordingly, we reject minor's claim that the juvenile court relied on inadmissible and unauthenticated video recordings.
Further, even if we assume error, minor has not shown prejudice. Minor has not identified any video file on the DVD that he believes (i) was not presented at the hearing, (ii) was improperly relied upon by the court, and (iii) altered the court's findings to his detriment. Since minor makes no claim "that the video clips on the DVD containing surveillance videotapes are not reliable copies of the information stored in the surveillance cameras," it is difficult to discern what harm minor could allege.
D. Two Counts of Burglary
The juvenile court found "one single event but two distinctive entries from the outside to the inside, two different separate occasions where [minor] is taking different property. It was close in time, but, in fact, technically, there are two burglaries in addition to the grand theft." Minor contends there was insufficient admissible evidence to support two counts of burglary.
Penal Code section 459 provides in relevant part, that one who "enters any . . . shop, warehouse, store, . . . or other building, . . . with intent to commit . . . larceny or any felony is guilty of burglary." "Under section 459, burglary consists of an unlawful entry with the intent to commit a felony. Thus, the crime is complete, i.e., one may be prosecuted and held liable for burglary, upon entry with the requisite intent. [Citation.] It follows, therefore, that every entry with the requisite intent supports a separate conviction." (People v. Washington (1996) 50 Cal.App.4th 568, 578-579 (Washington). "The gist of burglary is the entry into a structure with felonious intent. Technically at least, a new burglary occurs with every new entry." (In re William S. (1989) 208 Cal.App.3d 313, 317.) Under section 459 and Washington, the juvenile court properly found minor committed two burglaries.
People v. Garcia (2016) 62 Cal.4th 1116, cited by minor, is inapposite. In Garcia, our high court concluded that a defendant who entered a structure with felonious intent did not commit a second burglary when he entered a room within the structure (in that case, a bathroom at the back of a store) with felonious intent. (Id. at pp. 1119, 1133.) But minor was not found to have committed two burglaries based on one entry into the building housing the dispensary and then one entry into a room within the building. He was found to have committed two burglaries based on two entries into the building. Garcia did not overrule Washington.
The juvenile court explained, "I observed at 2:51, you could clearly see the point of entry. It's the side window . . . where the perpetrator entered. . . . [¶] At 2:52, the person runs again through the same entryway with items. Then at 2:57 reentered. It's clearly the same person." (Italics added.) Here, the court is clearly describing reentry into the building through the kicked-in window panel next to the front door of the dispensary, not reentry into some interior part of the dispensary.
Minor claims his adjudication violates his constitutional protection against double jeopardy because he was adjudicated twice for a single offense. This claim fails because his separate entries into the dispensary with felonious intent constituted separate burglaries.
We also reject minor's claim that the juvenile court should have excluded the time stamp evidence, referring to the time and date stamp shown on each of the video clips. Defense counsel did not object to the admission of the time stamps at the jurisdictional hearing, and the issue is forfeited. In any event, the claim lacks merit. Minor did not dispute that the surveillance video clips were recorded on the date the break-in occurred. The precise time was immaterial. As the juvenile court explained its ruling, "It wasn't significant to the Court whether it was 2:50 or 5:50. There is yet a possible explanation of the time zone. It's irrelevant to the Court. It was a continuous event and the minute portions matched up. It clearly it's one event and consistent with the evening hours. It was dark outside. It was a closed business."
II. The Dispositional Order
Minor contends the juvenile court erred, first, in failing to declare whether the grand theft he committed was a felony or misdemeanor and, second, in failing to stay the terms for two of the offenses under Penal Code section 654.
A. Wobbler Offenses
Under Welfare and Institutions Code section 702, if a "minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor [a so-called 'wobbler'], the court shall declare the offense to be a misdemeanor or felony." (In re Manzy W. (1997) 14 Cal.4th 1199, 1201.)
The juvenile court found minor committed grand theft (Pen. Code, § 487, subd. (a); count 3), and two counts of second degree commercial burglary (id., § 459; counts 4 and 5), all wobbler offenses. (See People v. Ceja (2010) 49 Cal.4th 1, 7, fn. 6 [most grand thefts are wobblers]; People v. Moomey (2011) 194 Cal.App.4th 850, 857 [second degree burglary is a wobbler].)
Counts 1 and 2 for shoplifting were dismissed.
In the dispositional hearing, the juvenile court stated, "The Petition is deemed a felony as to Counts 3 and 4, and Count 5. Both Counts 4 and 5 are second degree. Are those wobblers, by any chance?" The prosecutor confirmed they were. The court then stated it was "deeming that felony status is appropriate." The court made no mention of the fact that count 3 for grand theft was also a wobbler.
Minor contends the juvenile court failed to comply with Welfare and Institutions Code section 702. He argues that the court's question whether counts 4 and 5 were wobblers demonstrated that it "both learned of and exercised its discretion as to at least some of the offenses nearly in the same breath." He seeks remand for the juvenile court to more fully consider whether the three offenses should be deemed felonies.
He also claims the court violated California Rules of Court, rule 5.778(f)(9). But the rule on its face applies only "[o]n an admission or plea of no contest."
The Attorney General argues the juvenile court made the requisite finding for counts 4 and 5, but did not do so as to count 3. He urges that we remand for the limited purpose of permitting the juvenile court to make the required finding for count 3. We agree with the Attorney General and will remand the matter to allow the juvenile court to determine whether count 3 is a misdemeanor or a felony.
We need not remand as to counts 4 and 5 because the juvenile court's discussion about whether the burglary counts were wobblers demonstrates that it understood its discretion; as to counts 4 and 5, the court knew it could sentence minor as a misdemeanant but chose to sentence him as a felon instead. (Cf. In re Dennis C. (1980) 104 Cal.App.3d 16, 23 [where "it [was] entirely possible that the judge simply sentenced [the minor] as a felon without considering the possibility of sentencing him as a misdemeanant," remand for clarification was required].)
Penal Code section 654, subdivision (a) (section 654), provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
As we have mentioned, the juvenile court found the break-in was "one single event but two distinctive entries from the outside to the inside, . . ." (Italics added.) At the dispositional hearing, the juvenile court asked what the maximum term of confinement was, the parties agreed it was five years four months, and the court imposed that term. The court did not discuss how the maximum term was calculated and did not mention section 654.
Minor contends the terms for two of the three offenses should be stayed because all three offenses were committed with a single intent and objective. The Attorney General concedes the term for count 3 should be stayed under section 654. We accept this concession. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [section 654 applies to preclude punishment for both burglary and theft where burglary was based on entry with intent to commit theft].)
"[I]n what it has termed a ' "judicial gloss" ' on the statute's language [citation], the Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts, or offenses, were committed incident to a single intent and objective." (People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio).)
However, the Attorney General argues that section 654 does not require staying the term for one of the burglary counts. He points out that section 654 does not apply to a course of conduct that is "divisible in time," and "[t]his is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken," quoting Gaio, supra, 81 Cal.App.4th at pp. 935-936. In his reply, minor argues that Gaio is distinguishable because the course of conduct in that case (bribery) spanned months, not minutes. (Ibid.)
Minor instead relies on People v. Goode (2015) 243 Cal.App.4th 484 (Goode). There, the defendant was convicted of burglary for opening a metal storm door and attempted burglary for "jiggling a window on the same residence a few seconds later." (Id. at p. 486.) The Court of Appeal concluded the defendant's course of conduct was not divisible in time for purposes of section 654 and, therefore, the defendant could not be punished for both burglary and attempted burglary. (Id. at pp. 491, 494.)
Here, the two entries into the dispensary were more than a few seconds apart. It is arguable that minor had the opportunity to reflect and renew his intent before entering the dispensary a second time. Because this case is not exactly analogous to Goode, we will remand to the trial court to determine in the first instance whether minor's course of conduct was divisible in time for purposes of section 654.
In summary, the maximum term of confinement must be recalculated with the term for count 3 (grand theft) stayed under section 654, and the matter is remanded to the juvenile court to determine in the first instance whether one of the terms for burglary must be stayed under section 654 as well.
DISPOSITION
The dispositional order is reversed, and the matter is remanded. On remand the juvenile court is instructed to declare whether count 3 for grand theft is a felony or a misdemeanor; to determine whether the term for one of the burglary counts is to be stayed under Penal Code section 654; and to stay the term for grand theft under Penal Code section 654. The jurisdictional order is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.