Peoplev.D.G. (In re D.G.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVEDec 2, 2019
A155067 (Cal. Ct. App. Dec. 2, 2019)

A155067

12-02-2019

In re D.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV02983201)

Twelve-year-old D.G. (Appellant) and four other youths entered a shop on two consecutive days, harassed the clerks and stole some merchandise. He appeals the juvenile court's order sustaining a wardship petition based on allegations that he committed a robbery and two simple assaults. (Pen. Code, §§ 211, 240; Welf. & Inst. Code, § 602.) Appellant contends the evidence of robbery was insufficient and the trial court erred in admitting, under the spontaneous statement exception to the hearsay rule, evidence of a conversation one of the clerks had with the shop's owner within an hour of the first incident. (Evid. Code, § 1240.) We affirm.

I. BACKGROUND

Y.L. was the owner of City Gifts, a knick-knack store in San Francisco's Chinatown area. Two women worked at the shop as clerks, L.W. and A.Y. On April 19, 2018, at about 7:00 p.m., Y.L. received a telephone call from L.W., who told her five boys had come into the store "grabbing things" and "robbing things," that they used a BB gun to hit L.W. on the head, and that they "strangled" A.Y. and hit her with a BB gun. Y.L. told L.W. not to worry because L.W. did not really want to continue working in the shop anyway.

Y.L. went into the shop the next morning (April 20, 2018), and saw the store was "in such a mess." She flagged down police officers at about 10:50 a.m. and told them what had happened. Officers interviewed A.Y., who was hesitant about cooperating. Y.L. told the officers she had not witnessed the incident, but she showed them footage from the store's surveillance system which depicted both the inside of the store and the sidewalk outside.

The footage from the surveillance system showed that a group of five boys, including appellant, entered the store and began touching the merchandise; that L.W. pointed toward the exit as though ordering the boys to leave; that two of the boys put merchandise in their pockets; that A.Y. swatted at them with a tee shirt or rag when they walked out the door; that one of the boys held his hands over A.Y.'s head; that appellant pulled out what appeared to be a pistol (and which was apparently a toy gun) and pointed it in A.Y.'s face; that he discharged the toy gun; that one of the other boys pointed an object that looked like a pistol at L.W.; and that appellant pointed his toy gun at L.W. and A.Y. as he and the group walked away from the store.

Later that day, police received a telephone call from Y.L. reporting that the "five kids from last night are stealing fireworks right now." Officers arrived at the scene and saw five boys wearing clothes matching that worn by the suspects in the surveillance video. They were walking and throwing fireworks into the street. The boys were detained and a bag containing fireworks (which were the same type of fireworks as were sold at City Gifts) was discovered under a newsstand. One of the officers went into City Gifts and smelled a stink bomb; he was told the suspects threw a stink bomb. Jade items and fireworks were found on four of the detained boys but not on appellant.

The district attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, alleging that on April 19, 2018, appellant had committed a robbery, two counts of assault with a deadly weapon, and two counts of discharge of a firearm with gross negligence. (Pen. Code, §§ 211, 245, subd. (a)(1), 246.3, subd. (a).) As to the robbery count, it was alleged appellant had personally used a dangerous or deadly weapon. (Pen. Code, § 12022, subd. (b)(1).)

A jurisdictional hearing was held on the charges. L.W. and A.Y. did not testify at the hearing, despite being subpoenaed by the district attorney. The court reviewed surveillance tapes from April 19 and April 20, heard testimony from the investigating police officers, and heard the testimony of Y.L. It sustained the petition as to one count of robbery and two counts of simple assault (§ 240) as lesser included offenses of the charged assaults with a deadly weapon, and rejected the other charges and special allegation. The court placed appellant on probation in the custody of his grandfather.

II. DISCUSSION

A. Sufficiency of the Evidence

Appellant contends the evidence was insufficient to sustain a finding he committed a robbery because neither the videos nor L.W.'s statement to Y.L. supported an inference that any of the boys actually stole anything from the store on April 19. We disagree.

" 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.' " (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain the property, carry it away, or escape. (People v. Gomez (2008) 43 Cal.4th 249, 256; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes).) "It is sufficient to support the conviction that [the defendant] used force to prevent the . . . retaking [of] the property and to facilitate his escape." (Estes at p. 28.) Robberies in which force or fear is not used until after the perpetrator has already taken the loot "are commonly referred to as 'Estes robberies.' " (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.)

In this case, appellant and four other boys entered the City Gifts shop and began handling the merchandise inside. Although appellant argues there was no evidence any property was actually taken, the surveillance camera footage, which was introduced as evidence in this case, shows that two of the boys other than appellant took items from the store. The first taking occurs in the Camera 3 video, when at 6:21:26 p.m. to 6:21:27 p.m., one boy (later identified as M.) places an item in his pants pocket while L.W. is distracted by the activities of the other boys. L.W. then approaches M. and reaches for his arm, at which point he aggressively pulls his hand away from her and walks out the door of the shop. The second taking occurs after M. walks out of the store, when another boy (later identified as J.) grabs an item and places it in his pocket at 6:21:42 p.m. to 6:21:48.

After the two takings inside the store, the group walks outside. A.Y. swatted at them with a tee shirt or rag when they walked out the door and one of the boys held his hands over her head. Appellant pulled out what appeared to be a pistol (and which was apparently a toy gun) and pointed it in A.Y.'s face and pulled the trigger. One of the other boys pointed an object that looked like a pistol at L.W. Appellant pointed his toy gun at L.W. and A.Y. as he and the group walked away from the store.

This was sufficient evidence that appellant participated in an Estes-type robbery. Although a reasonable trier of fact could have concluded that appellant brandished the toy pistol as an afterthought or merely to taunt L.W. and A.Y., and did not intend to facilitate the taking of any property or the group's escape through its use, it was also possible to conclude that the group had entered the store intending to shoplift something; that at least two of the boys were successful in doing so; and that appellant used force or fear against the store clerks to help the group escape. L.W.'s statement to Y.L. that the boys were "robbing things" may not, by itself, have been sufficient evidence of a felonious taking, but it shows she was aware of the thefts that had occurred inside the store and supported an inference she was trying to recover the property when appellant pulled out the toy pistol.

"Appellate inquiry into the sufficiency of the evidence 'does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In other words, 'it is the [trial court] not the appellate court which must be convinced of the defendant's guilt.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1055-1056.) Although the issue is close (see ibid.), the record here contains substantial evidence from which the juvenile court could have found beyond a reasonable doubt that defendant knew of and shared the other boys' intent to steal and that the crime was elevated from shoplifting to a robbery when appellant personally acted in a way that satisfied the element of force or fear. (Estes, supra, 147 Cal.App.3d at pp. 27-28.)

B. Spontaneous Statement

Over defense objection, the court admitted evidence of L.W.'s telephone call to Y.L. on the evening of April 19 as a "spontaneous statement" under Evidence Code section 1240. Appellant contends this was an abuse of discretion and argues that the error was prejudicial, because although the court also saw surveillance footage of the incidents, it was not clear from that footage that property was actually taken on August 19 and L.W.'s statements to Y.L. filled in this gap. We disagree.

Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." This hearsay exception "is based upon the long-held recognition that a statement uttered while under the stress of excitement interferes with the process of reflection and fabrication, and therefore is considered a true expression of the declarant's observations and impressions." (People v. Merriman (2014) 60 Cal.4th 1, 66 (Merriman); see also People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

To render statements admissible under the spontaneous statement exception: " ' "(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been [made] before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." ' " (People v. Riccardi (2012) 54 Cal.4th 758, 832, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "A number of factors may inform the court's inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and misrepresent.' [Citation.] Such factors include the passage of time between the startling event and the statement, whether the declarant blurted out the statement or made it in response to questioning, the declarant's emotional state and physical condition at the time of making the statement, and whether the content of the statement suggested an opportunity for reflection and fabrication." (Merriman, supra, 60 Cal.4th at p. 64.) "[T]hese factors 'may be important, but solely as an indicator of the mental state of the declarant.' [Citation.] For this reason, no one factor or combination of factors is dispositive." (Ibid.) " 'The crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 416 (Bryant), quoting People v. Gutierrez (2009) 45 Cal.4th 789, 811; see also People v. Vines (2011) 51 Cal.4th 830, 880, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.)

The trial court's decision to admit statements under Evidence Code section 1240 is subject to review on appeal under the abuse of discretion standard. (People v. Phillips (2000) 22 Cal.4th 226, 236.) A trial court's determination that evidence is admissible as an exception to the hearsay rule will not be disturbed on appeal absent a finding by the reviewing court that " ' "the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Bryant, supra, 60 Cal.4th at p. 390.) "A merely debatable ruling cannot be deemed an abuse of discretion." (Ibid.) Our high court has emphasized that " '[t]he discretion of the trial court is at its broadest' when it determines whether an utterance was made while the declarant was still in a state of nervous excitement." (People v. Thomas (2011) 51 Cal.4th 449, 496.)

L.W. was personally involved in an exciting event that, based on the time shown on the surveillance camera, happened around 6:22 p.m. A petite woman, she was confronted by five youths who acted aggressively in the store where she worked and two of them drew what appeared to be pistols. She called the store owner, Y.L., at about 7:00 p.m., or around 40 minutes later, to tell her what had happened. Appellant complains that L.W.'s statements were not sufficiently spontaneous because there was ample opportunity for deliberation and reflection during the delay between the event and her statements to Y.L. But while the length of time that passed was a factor for the court to consider, the primary consideration was L.W.'s state of mind at the time she made the statements to Y.L. Y.L. testified that L.W. was talking very fast in a high pitched tone: "[S]he was talking angrily. And also, she was very, very upset." The court could reasonably conclude L.W. was acting under the stress of excitement when she called Y.L.

Appellant does not claim the statements were "testimonial" and therefore inadmissible under the Confrontation Clause of the United States Constitution pursuant to Crawford v. Washington (2004) 541 U.S. 36, 68-69. (See People v. Rincon (2005) 129 Cal.App.4th 738, 749 ["[S]pontaneous statements, made to a person unconnected to law enforcement under circumstances in which [the declarant] could not reasonably anticipate they would be used in court, are not 'testimonial' "].) --------

Appellant spends considerable time arguing the incident was not sufficiently startling to create nervous excitement in L.W. We are not persuaded that witnessing a theft of property for which one is responsible and then having what appears to be a gun pointed in one's direction is insufficiently startling to cause nervous excitement, even if there is no actual violence or trauma. Appellant argues that L.W. knew all along that the toy gun was not real, but we cannot say the trial court exceeded the bounds of reason in concluding the event was traumatic and in admitting the evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004) 116 Cal.App.4th 1253, 1279.)

III. DISPOSITION

The judgment is affirmed.

/s/_________

NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.