In re K.D. CA4/2

• Court: California Court of Appeal
• Decided: June 30, 2022
• Docket: E077212
• Status: Unpublished

Opinion

Filed 6/30/22 In re K.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re K.D., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E077212 Plaintiff and Respondent, (Super.Ct.No. J288887) v. OPINION K.D.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,

Judge. Affirmed as modified.

Michaela Dalton, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Daniel Rogers, Acting Assistant Attorney General, Kristen Kinnaird Chenelia

and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

A juvenile wardship petition was filed alleging that defendant and appellant K.D.

(minor) committed attempted second degree robbery (Pen. Code,1 §§ 664, 211, count 1),

assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count

2), and criminal threats (§ 422, subd. (a), count 3). On May 10, 2021, a juvenile court

found counts 1 and 3 true and found count 2 not true. On May 24, 2021, the court

declared minor a ward of the court and placed him in the custody of his guardian, to be

maintained in her home on terms of probation. The court found the maximum period for

physical confinement to be three years eight months.

On appeal, minor contends: (1) there was insufficient evidence to support the

court’s true findings since the victim’s in-court identification of him was insufficient to

establish beyond a reasonable doubt that he was the perpetrator; and (2) the juvenile court

erred in setting the maximum term of confinement since minor was not removed from the

custody of his guardian. The People concede, and we agree, that the maximum term of

confinement should be stricken. Otherwise, we affirm.

FACTUAL BACKGROUND

M.B. (the victim) worked as a custodian at a church in San Bernardino. On March

23, 2021, about 9:30 p.m., she left work and walked to her car parked right outside the

building. As soon as she left the building, three males rushed at her. All three of them

were dressed in black and wearing masks. One of them stood in front of the other two

1 All further statutory references will be to the Penal Code unless otherwise noted.

2 and was holding a knife. The individual with the knife ripped off his mask. He shoved

the knife at the victim and pushed her to the corner of the building. He told her to hand

over her purse or he would kill her. The other two also threatened the victim and

demanded that she give them her purse, but she never saw their faces. The victim

screamed, pounded on the glass door, and called for her coworker inside, “Phil, Phil, I

need help.” The three males repeatedly told her to shut up or they would kill her. Then,

all of a sudden, they turned around and took off running. The victim grabbed the keys on

the side of her belt and unlocked the building door. She found Phil and told him someone

tried to rob her. Phil called 911.

At trial, when asked how old the three males looked, the victim testified, “I could

only see the guy that was in the front. And the only way I knew what he looked like is

because he ripped his mask off.” The victim identified minor in court as the person who

was in front holding the knife.

On cross-examination, the defense attorney asked the victim how close the three

men were when they first approached her and suggested five or six feet. The victim said

she did not know how far five or six feet was and just said, “they were right on me,” and

“They were close.” The defense attorney then asked how long the incident lasted, from

the time she first saw the three assailants to the time they ran away. She said it was

probably 10 minutes. The defense attorney asked how long minor had his mask off. The

victim said, “Well, he had his mask on at first. When he came at me, he just ripped it off.

So he had it off.” The victim added, “He was right on me. The guy was right on me. I

know what he looks like.” The defense attorney noted that the victim was focused on

3 minor and the knife he was holding, and asked if the victim was also focused on the other

two men. She said, “I wasn’t really focusing on them, sir. I was focusing on the guy

who had the knife and that was in front of me.”

Defense counsel also asked about the meetings the victim had with the police

concerning the incident. The victim testified that at the first meeting, she described the

person holding the knife as a Black male adult, and told the officer he was probably in his

20’s. Defense counsel asked if she remembered giving a description at the second

meeting with the police, and the victim stated she told the officer he “was a young man

that was well-groomed with short hair” and also described him “as a dark-skinned male.”

Defense counsel asked if the police ever showed her any photo lineups with potential

suspects, and she said no.

On redirect examination, the prosecutor asked how close the person with the knife

got to her, and she indicated that he was about two feet away from her face. The

prosecutor asked if she got a good look at him, and she said, “Oh, yes, ma’am.” The

prosecutor asked whether she was sure the person in court was that person, and she said,

“Yes.” The prosecutor asked, “How sure?” and the victim said, “I’m sure.”

The prosecutor played a recording of the 911 call made on the night of the incident

and submitted into evidence the transcript of the call. On the call, Phil described the

perpetrators as three young Black guys. When the operator asked how old they were, the

victim, who was also on the call, said they were “18, 19, 20.” The victim also said,

“They could have killed me . . . so scared! I’m walking out and I’m just kind of like

going to my car and then they just jump down from the stairs and they pushed me against

4 the wall [unintelligible] butcher knife . . . I don’t know if the other two had knives or not

I just know the one did. He had a mask on and then he pulled it off. [unintelligible] and

then he said ‘give me your purse.’ And I just [unintelligible] and then I just start

screaming.”

DISCUSSION

I. There Was Sufficient Evidence to Support the Court’s True Findings

Minor contends there was insufficient evidence to support the court’s true

findings. He asserts that the critical issue was the identity of the perpetrator, and the

evidence consisted of only a single witness’s in-court testimony that he was the one who

committed the crimes. Minor claims there are two issues: (1) the true findings are not

supported by substantial evidence; and (2) the evidence was insufficient as a matter of

law to satisfy the prosecution’s burden of proof, since “more was needed to inspire

confidence in the truth of [the] accusations and to overcome the doubts created by the

omission of crucial facts—namely, whether the victim had identified [him] previously

outside of the suggestive courtroom environment.” We conclude the evidence was

sufficient to identify minor as the perpetrator.

A. Standard of Review

“[I]n considering a claim of insufficiency of the evidence, appellant has a heavy

burden in demonstrating that the evidence does not support the juvenile court findings.

[Citation.] An appellate court must review the whole record in the light most favorable to

the judgment in order to determine whether it discloses substantial evidence that a

reasonable trier of fact could find the essential elements of the crime beyond a reasonable

5 doubt.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136 (Ricky T.).) “We must

presume in support of the judgment the existence of every fact the trier of fact could

reasonably deduce from the evidence [citation] . . . .” (In re Jose R. (1982) 137

Cal.App.3d 269, 275.) In addition, “we must make all reasonable inferences that support

the finding of the juvenile court.” (Ibid.) “If the circumstances reasonably justify the

verdict, we will not reverse simply because the evidence might reasonably support a

contrary finding. This standard applies to cases based on circumstantial evidence.

[Citation.] The testimony of just one witness is enough to sustain a conviction, so long as

that testimony is not inherently incredible. [Citation.] The trier of fact determines the

credibility of witnesses, weighs the evidence, and resolves factual conflicts. . . . On

appeal, we must accept that part of the testimony which supports the judgment.” (In re

Daniel G. (2004) 120 Cal.App.4th 824, 830 (Daniel G.).)

B. The Evidence Was Sufficient

In the instant case, “ ‘there is in the record the inescapable fact of in court

eyewitness identification. That alone is sufficient to sustain the conviction.’ ” (In re

Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) The victim testified that she knew what

the person who came at her with the knife looked like because he ripped his mask off

immediately, and the encounter lasted approximately 10 minutes. She definitively

identified minor in court as the perpetrator. The victim testified that he was about two

feet away from her face. She confirmed that she got a good look at him, and that she was

very sure he was the perpetrator. It is well established that the “[t]he uncorroborated

testimony of a single witness is sufficient to sustain a conviction, unless the testimony is

6 physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284,

296 (Scott); see People v. Young (2005) 34 Cal.4th 1149, 1181.) The details of the

victim’s testimony were not inherently improbable and were not impeached on cross-

examination. Furthermore, nothing in the record suggests her testimony was physically

impossible. (See Scott, at p. 296.)

Moreover, “[i]t is for the trier of fact and not this court to determine the credibility

of witnesses.” (People v. Hughes (1969) 271 Cal.App.2d 288, 291 (Hughes).) The court

here found the victim credible and reliable and noted she was absolutely certain that

minor was the person who attempted to rob her.

Minor contends the victim’s in-court identification was insufficient since the

prosecution did not present additional evidence concerning the circumstances of the

identification (e.g., whether the victim previously identified minor). He claims that the

prosecution withheld “crucial information necessary to determining the identification was

accurate” and thereby “effectively lowered its burden of proving guilt beyond a

reasonable doubt.” However, contrary to minor’s claim, the prosecution was not required

to present evidence or information about the circumstances of the identification to allow

the court to conclude the identification was reliable.2 (Scott, supra, 21 Cal.3d at p. 296;

2 Although not part of the juvenile court’s basis for its decision, we note the record shows the probation officer’s disposition report was filed with the court prior to the jurisdiction hearing. The court acknowledged it had received the report, as it noted the recommendation was for formal probation. The report states that the victim’s coworker heard about the robbery from her daughter, who was friends with minor. The daughter said minor was bragging about robbing a janitor at church, and she showed the [footnote continued on next page]

7 See In re Gustavo M., supra, 214 Cal.App.3d at p. 1497 [an in-court identification alone

is sufficient to sustain a conviction]; In re Robert V. (1982) 132 Cal.App.3d 815, 821

[“ ‘[t]he testimony of a single witness is sufficient to uphold a judgment even if it is

contradicted by other evidence, inconsistent or false as to other portions.’ ”].)

Furthermore, defense counsel was given an ample opportunity to explore the

circumstances of the identification during cross-examination and to elicit any evidence at

trial disproving minor’s identity as the perpetrator. During closing arguments, defense

counsel asserted that this was “an ID case” and argued that the trauma the victim went

through during the incident raised doubts about the veracity of the identification of minor.

He also stated the police never attempted to show the victim photo lineups, and he

questioned how the victim made her identification. Counsel argued the evidence was

insufficient to prove minor was the perpetrator beyond a reasonable doubt. The

prosecution responded that the victim’s in-court identification was credible for numerous

reasons, including that her story at trial was consistent with what was reported on the 911

call.

In issuing its ruling, the court acknowledged there was no testimony as to how

minor was identified as a suspect and if there was a prior identification and said it would

victim a picture of him. The victim recognized minor as the person who had robbed her and then contacted the police. The police subsequently arrested minor. Additionally, the People’s bench brief and motions in limine stated that the victim’s coworker showed the victim photos from minor’s social media account because the coworker’s daughter had said minor was bragging about robbing a janitor at church at about the same time as the incident. The bench brief says the victim immediately recognized minor in the photos as the perpetrator and when she showed the police the pictures, she said she was “100%” sure that it was minor who tried to rob her.

8 “assume that there is a story behind that.” The court then stated that it heard evidence

“from a witness who indicated that the minor was the perpetrator of the crime,” and

“[w]hen asked about whether or not she was sure, she said that was him.” It remarked

that it had to look at the veracity of the witness and determine if she was reliable. The

court observed that the victim’s testimony was consistent, that she did not want to testify

but had to be subpoenaed, and that she had no apparent bias against minor. It then

pointed out that the victim had five to 10 minutes to interact with and look at the

perpetrator during the incident, and that was a sufficient amount of time to notice what a

person looks like. The court also observed the victim was asked several times if minor

was the perpetrator, and she said he was. The court found the victim’s identification

established beyond a reasonable doubt that minor committed the crimes.

In sum, the issue of credibility of the witness was for the juvenile court to decide

and not this court. (Hughes, supra, 271 Cal.App.2d at p. 291; Daniel G., supra, 120

Cal.App.4th at p. 830.) Viewing the whole record in the light most favorable to the

judgment, as we must, we conclude the evidence was sufficient to support the court’s true

findings. (See Ricky T., supra, 87 Cal.App.4th at p. 1136.)

II. The Maximum Term of Confinement Should Be Stricken

Minor was declared a dependent and placed in the custody of his aunt under

specified probation conditions. He argues that the court erred in setting a maximum term

of confinement when he was not removed from the physical custody of his guardian.

Respondent concedes, and we agree.

9 When a minor is removed from the physical custody of a parent or guardian under

a wardship order, the order must specify the maximum term of confinement. (Welf. &

Inst. Code, § 726, subd. (d).) However, the Welfare and Institutions Code does not

authorize a juvenile court to specify a maximum term of confinement when a minor is not

removed from the physical custody of his parents or guardian. The court here sustained

minor’s petition and placed him in the custody of his guardian on probation and found the

maximum custody time to be three years eight months. The court erred in including the

maximum term. (In re A.C. (2014) 224 Cal.App.4th 590, 591-592.) “[W]here a juvenile

court’s order includes a maximum confinement term for a minor who is not removed

from parental custody, the remedy is to strike the term.” (Ibid.) Thus, we will strike the

term.3

DISPOSITION

The maximum confinement term is stricken from the juvenile court’s order. In all

other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

CODRINGTON Acting P. J.

SLOUGH J.

3Because we will strike the maximum term, we need not address minor’s alternative claim that we should reduce the maximum term to two years.