Opinion
A154233
11-15-2018
In re FATIMA L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FATIMA L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV-027830-04)
Minor Fatima L. appeals from the juvenile court's jurisdiction and disposition orders in a proceeding initiated under Welfare and Institutions Code section 602. The court sustained allegations that she committed three offenses, placed her on probation subject to certain terms and conditions, and ordered her to be placed in a suitable family or group home. Fatima's court-appointed counsel has filed a brief that does not raise any legal issues. Counsel requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Fatima was informed of her right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues requiring further briefing and affirm the judgment.
BACKGROUND
On November 6, 2017, the Alameda County District Attorney filed a juvenile wardship petition regarding Fatima. The district attorney alleged that on October 31, 2017, Fatima committed felony second degree robbery against Dominic B. (Pen. Code, § 211) and personally used a firearm in doing so (id., § 12022.53, subd. (b)); that on November 2, 2017, Fatima committed the felony of carrying a concealed firearm on her person (id., § 25400, subd. (a)(2)); and that on November 2 she also committed the felony of carrying a loaded firearm on her person in a city, Hayward, California (id., § 25850, subd. (a)).
The juvenile court held a contested jurisdiction hearing regarding Fatima and another minor, Rudy C., over a series of dates between January 16, 2018, and February 21, 2018. There was evidence presented that on October 31, 2017, at about 5:30 p.m., Dominic, 16 years old at the time of the jurisdiction hearing, met Fatima, then 16 years old, and Rudy, who was two grades behind Dominic, in a parking lot near Dominic's residence in Hayward, California. Dominic testified that he met Fatima and Rudy there to buy a handgun and marijuana after previously negotiating the price. He got into the rear of the car Fatima and Rudy arrived in to conduct the transaction. Fatima sat in the rear next to Dominic, Rudy sat in the front passenger seat, and a female was in the driver's seat.
Dominic further testified that once he was in the rear seat of the car, Fatima showed him a handgun and a magazine for the handgun. She gave them to him and he examined them. He asked Fatima if she wanted to count the money and she told him to count it, so he started to count from the $600 he had brought with him. As he began, Fatima grabbed the handgun and magazine, loaded the handgun and put it up to Dominic's temple. She told him, "Strip yourself, fool," meaning he should give her all his money. Dominic grabbed for the gun and wrestled with Fatima for it, never getting full control of the gun. Fatima shouted repeatedly to Rudy to take out his gun. Rudy eventually took out a gun and shot Dominic in the right shoulder. Dominic blacked out. He woke up on the ground in the parking lot. Although he had had $600 in cash, he had only $100 on his person when he woke up.
Police learned of the incident and began investigating. A gang detective with the Hayward Police Department testified that two days later, on November 2, 2017, she observed Fatima and Rudy, who were persons of interest in the October 31, 2017 shooting, as they walked together. Rudy was touching his waistband as if he was carrying a firearm. The officer followed Fatima and Rudy as they walked to a nearby Target store and watched them walk through the parking lot and stand by the north side of the store. A short time later, a male who was approximately 16 years of age approached Rudy and the two had a conversation. The officer drove to a closer location in the parking lot to obtain a better view and lost sight of the three for a short time. At a closer location, she observed their feet behind some bushes near where they had been standing. After less than two minutes, Fatima and Rudy came running around the outside of the bushes. The other male followed and held up a cell phone as if to take a picture of Fatima and Rudy.
A police officer with the Hayward Police Department testified on November 2, 2017, after receiving radio communications, he observed Fatima and Rudy walking in the vicinity of the Target store, and detained them. A firearm was found in Rudy's possession. The two were arrested. The officer interviewed Fatima, who acknowledged she was in possession of a firearm when she was arrested. Fatima said that Dominic had been shot with the firearm found in Rudy's possession. She told the officer that on November 2, she and Rudy went behind the Target store "under the idea to sell a firearm" and that they "ended up getting the money from the unknown person that they had met."
Rudy was also interviewed by police. He admitted going behind the Target store to commit a robbery under the guise of selling a firearm to the victim. He also said he and Fatima had robbed Dominic under the same guise of selling him a firearm, and that he, Rudy, fired his firearm at Dominic when he saw Dominic wrestle with Fatima over the gun.
Rudy testified on his own behalf at the contested jurisdiction hearing. He said that he lied to the police about him and Fatima robbing Dominic because he felt pressured by the police to tell them what they wanted to hear. He indicated in his testimony that he intended, with Fatima, to sell a gun to Dominic that day, that Dominic and Fatima started wrestling in the rear seat of the car over the gun as he sat in the front passenger seat, that he fired his gun without looking back to try to stop the fighting, and that he did not know that Dominic had been shot until later. He also testified that he planned to rob the person he and Fatima met on November 2, 2017, under the guise of selling the person a gun.
Fatima's sister also testified at the hearing. She said that she was the driver of the car that Fatima and Rudy used in the incident with Dominic on October 31, 2017. She denied having any knowledge beforehand that Fatima and Rudy planned to sell a gun to Dominic, or to rob him. Among other things, she recalled hearing her sister tell Dominic to give the gun back, hearing Dominic and Fatima at some point wrestling in the back seat over the gun, and hearing her sister say he should give her the money and that he could "take it." She did not observe Dominic counting money, but found some money in her car two or three days after the incident. She did not know where it came from. She also testified about her previous statements to police, including that she had lied at first that she had been elsewhere on the day of the shooting.
Prior to and during the contested jurisdiction hearing, Fatima's counsel objected to the introduction of evidence that on November 2, 2017, Fatima and Rudy planned to rob the person they met that day under the pretense that they were selling a gun to him. Fatima's counsel said Fatima would stipulate to being in possession of a loaded gun when she was arrested that day, making any additional evidence of what occurred that day improper. Counsel further argued the evidence was not relevant because it involved an incident subsequent to the offense Fatima was alleged to have committed on October 31, 2017. The prosecutor argued that this uncharged act evidence was relevant for a variety of reasons and admissible, whether or not it occurred before or after the offense Fatima allegedly committed on October 31, 2017. The juvenile court ordered the evidence would be admitted under Evidence Code section 1101, subdivision (b) as relevant to Fatima's intent on October 31, 2017, and was not unduly prejudicial under Evidence Code section 352.
After hearing argument from counsel, the court ruled. Referring to the October 31, 2017 incident, the court stated, "I do accept that this was a planned robbery, a planned ruse that implied the sale of a gun to [Dominic]. All witnesses agree that a gun sale began and soon thereafter there was a struggle between Fatima and Dominic and Rudy then shot Dominic. [¶] The civilian witnesses including Dominic . . . had in various spots significant credibility problems. Each concealed information, feigned ignorance about facts that by all appearances they knew but were unwilling to share. In various other ways throughout the testimony, they displayed bias and self-interest and were not truthful in their testimony." The court found true beyond a reasonable doubt all of the allegations made against Fatima.
For the disposition hearing, the probation department reported that Fatima had mostly followed her program at the Juvenile Justice Center, where she had been detained since November 2, 2017. Fatima denied being involved in a gang and expressed frustration for repeatedly getting into trouble at school for wearing red clothing. At a previous school, she earned disciplinary referrals for wearing multiple articles of red clothing. She admitted smoking marijuana starting in ninth grade. Fatima's school attendance was poor, causing her to have a serious credit deficit. She had a 0.54 grade point. Staff observed she was "a leader and had a group of male peers that followed her lead." She was described as very bright and capable of doing well in school. Nonetheless, the department further reported, she "appears to be someone who is respected in the gang community and associates regularly with documented gang members." Prior to the October 31, 2017 incident, Fatima had been adjudged a ward of the court for a felony, had admitted participating in two robberies and had violated probation. She had a mixed record of success in her participation in a variety of supportive services.
Fatima's mother indicated that Fatima acted responsibly at home, but mother questioned her choice of friends. Mother thought that, given Fatima's recent behavior in the community, it was possible that she was involved in a gang. Mother also said that on October 28, 2017, their family home was shot at approximately 18 times while the family was home. Mother believed the shooting was someone trying to retaliate against Fatima or one of Fatima's friends. Mother was trying to relocate the family to another city. Mother said Fatima had experienced trauma in the past from an attempted kidnapping and from sexual abuse by a family friend, who had fled the country.
The department reported that it had explored various placement options for Fatima, including with family elsewhere. It recommended that she be placed on probation, but not in her mother's custody because this had been previously tried without success. It recommended that she be placed in a suitable family or group home with standard out-of-home probation conditions.
At the disposition hearing in March 2018, the court placed Fatima on probation subject to certain conditions and ordered her placed in a suitable family home or group home. The conditions included that Fatima submit to chemical drug testing, not possess or handle any dangerous weapons, and not associate with persons she knew were members in a criminal street gang or who wore clothing or other insignia she knew to be associated with a criminal street gang.
Fatima filed a timely notice of appeal from the juvenile court's jurisdiction and disposition orders.
DISCUSSION
We have conducted an independent review of the record under Wende and have not found any arguable appellate issues. The court's jurisdictional findings are reviewed for substantial evidence. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) There was substantial evidence presented that Fatima committed the offenses alleged in the People's petition. The juvenile court's comments at the jurisdictional hearing indicate that, although it did not find Dominic entirely truthful and/or forthcoming in his testimony, it found his account of Fatima's actions in rear seat of the car to be credible. We see no appellate issues regarding the juvenile court's credibility determinations. (See In re Maya L. (2014) 232 Cal.App.4th 81, 104, fn. 6 [a reviewing court does not have the power to revisit the credibility of witnesses].) Fatima's observed conduct on November 2, 2017, her and Rudy's statements to police about their intent that day, and her uncontested possession of a firearm that day provide further substantial evidence to support the juvenile court's finding that the allegations against her were true.
As for Fatima's objection to the introduction of evidence about her uncharged acts on November 2, 2017, the court was within its discretion to admit this evidence as relevant to her intent on October 31, 2017. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402 ["In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance" ' "].) Regarding Fatima's objection that this evidence involved acts by her that occurred after the date of the charged offense, "[t]hat the uncharged offense occurred after the charged offense does not lessen its relevance . . . . One commentator has stated: 'If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.' (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.6, p. 1200, italics in original.)" (People v. Balcom (1994) 7 Cal.4th 414, 425.)
There also are not any arguable appellate issues regarding the court's exercise of its discretion under Evidence Code section 352 to admit this evidence, given the high probative value of this evidence, the more serious nature of the actions alleged to have occurred on October 31, 2017, and that the evidence was presented efficiently at the bench trial. (See, e.g., People v. Soper (2009) 45 Cal.4th 759, 779, fn. 16 [trial court has the discretion under Evidence Code to admit evidence "after balancing the probative value of the evidence against the potential for prejudice"].)
If Rudy had not testified at the jurisdiction hearing and been subject to cross-examination by Fatima's counsel, Fatima might have an opportunity below and on appeal to argue that his statements to police on November 2, 2017, were inadmissible against her under Crawford v. Washington (2004) 541 U.S. 36 or People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1203-1204 [discussing the application of these cases].) These cases in one way or another address a defendant's constitutional rights regarding a testimonial out-of-court statement by a codefendant who is not subject to cross-examination. Because Rudy was available for cross-examination at the jurisdiction hearing, Fatima's constitutional rights were protected. (See Crawford v. Washington, supra, 541 U.S. at p. 59 ["Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine"], italics added; People v. Capistrano (2014) 59 Cal.4th 830, 869 ["The Aranda/Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant"], italics added.)
Finally, we have independently reviewed the record regarding the court's disposition hearing and order and see no arguable appellate issues regarding the disposition either. The court also has broad discretion to fashion appropriate conditions of probation for a minor's reformation and rehabilitation. (See John L. v. Superior Court (2004) 33 Cal.4th 158, 183 ["a crime alleged and sustained beyond a reasonable doubt under section 602 triggers broad discretion in the juvenile court to order probation under various conditions"].) Further, a juvenile court's order that a juvenile be placed in a suitable family or group home may only be reversed upon a showing that the court abused its discretion. (See In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330 ["A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion"].) Here, there were facts presented at the contested jurisdiction hearing and/or in the probation department's dispositional report to support the terms and conditions of probation set by the court and its placement order. This included that Fatima was acting out in violent ways that were dangerous to the community, had previously been unsuccessful on probation while remaining at home, had possibly endangered her family by her conduct on the streets and gang associations, was engaging in drug use, and had participated in a violent robbery of Dominic. There are no arguable appellate issues regarding the court's disposition order.
DISPOSITION
We have conducted an independent review of the record under Wende and conclude there are no arguable appellate issues requiring further briefing. The orders appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.