Filed 1/9/14 In re Rafael S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re RAFAEL S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

v. RAFAEL S., Defendant and Appellant. F067280 (Super. Ct. No. JJD065389)



### OPINION

THE COURT  APPEAL from a judgment of the Superi or Court of Tulare County. Juliet L. Boccone, Judge. Kristen Owen, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys Ge neral, for Plaintiff and Respondent. -ooOoo-

 Before Gomes, Acting P.J., Po ochigian, J., and Franson, J.2 At a contested jurisdiction hearing, the ju venile court found true allegations that appellant, Rafael S., a minor, committed se cond degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and that in doing so he pe rsonally used a deadly and dangerous weapon, viz., a knife (Pen. Code, § 12022, subd. (b)(1 )). At the subsequent disposition hearing, the juvenile court continued appellant as a ward of the court and ordered him committed to the Tulare County Correctional Center Un it for a period of 24 0 to 365 days. On appeal, appellant’s sole contention is that the evidence was insufficient to support the instant adju dication. We affirm. FACTS Jurisdiction Hearing Testimony Richard Z. (Richard), age 15, testified that on January 18, 2013, he was walking home from school when two males approached him. 1 One of them, who Richard identified at the jurisdiction hearing as appella nt, pressed a pocket knife against Richard’s stomach and demanded that Richard give hi m “everything [he] had.” Richard “g[a]ve him [his] property.” Richard did not know appellant and the othe r person, but he had seen them before. “[T]hey were bugging [Richard] for the last two months, asking [him] if [he] banged a certain color.” On January 22, 2013, Richard was called to the principal’s office at his school “to look at pictures and give a statement about what happened.” He was shown photographs, but he determined the person who robbed him was not among thos e whose photographs he was shown. “A couple of hours later,” Ri chard went back to the principal’s office, looked at more photographs, and saw a photog raph of the person who robbed him. At

1 Except as otherwise indicated, all in formation in this section is taken from Richard’s testimony.3 that point, Richard asked the police officer on campus, Officer Jones, if he (Richard) could “have some time” so he could “see that person one more time to be certain.” Richard “wanted more time to se e a face, to see his face in public and be sure of it.” Richard was “able to do that,” and he “t old [the officer] it was him.” On cross-examination, Richard reiterate d he was approached by two people but he admitted he “remember[ed] telli ng [someone] else that there may have been more people there[.]” Richard has “a disease” called “Bipol ar” that “makes [him] hallucinate and hear things that other people cannot hear or see.” He testified, “I think that was the cause” of his previously stating there were more than two people at the scene. On redirect examination, Richard was asked if his in-cou rt identification of appellant as the person who robbed him was “real” or “something [h is] mind made up,” Richard answered, “No that was real.” Richard provided a description of the ro bber and the other person who approached him to an investigating police officer. The robber was “bald” and was wearing a white shirt, black shorts and black shoes. The ro bber’s companion “was also wearing black” and “his hair was almost a high-end, tight with a flat top.” Visalia Police Officer Matt Jones testifie d to the following: He was on duty on January 22, 2013, as a youth services officer at Golden West High Sc hool when a student advised him he had been robbed at knife-point. The student stated he had viewed some photographs but was unable to “recognize anyone .” Later that day, the student told the officer he had previously seen the person who robbed him on campus, but he “wasn’t totally sure” and “wanted to see them agai n.” Officer Jones conducted a search of appellant’s house, but did not find any of the property taken from Richard. Frank D. (Frank) testified to the follo wing: He attends Charter Alternative Academy. On January 18, 2013, Frank had a knife with him “at school,” appellant was also “at school,” and Frank gave the knife to appellant. When asked how he gave the4 knife to appellant, Frank replied that “at lunc h,” while there were “a lot of other people there,” he “put the knife on the lunch table.” He did not see “what happened to the knife” after he put it on the table. At his school, Fr ank is required to stay on campus “during lunch.” Additional Background At a hearing prior to the jurisdiction hear ing, appellant’s counsel told the court the following: According to the police report, the two person s who accosted Richard ran off, but appellant “has a breathing problem,” as a result of which “[h]e can’t run.” In addition, at the time of the instant offens e, appellant was on the electronic monitoring program and although the monitor was not work ing, appellant was not aware of that. DISCUSSION There is no dispute the evidence wa s sufficient to establish someone robbed Richard. Appellant’s claim on appeal is that the evidence was insu fficient to establish he was the robber. Legal Background In determining whether the ev idence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bo und by the same principles as to the sufficiency and substantiality of the eviden ce which govern the re view of criminal convictions generally. ( In re Roderick P. (1972) 7 Cal.3d 801, 8 09.) Those principles include the following: “[I]n reviewing the sufficiency of the ev idence to support a conviction,” we determine “‘whether fro m the evidence, including all reasonable inferences to be drawn there from, there is any substantial evidence of th e existence of each element of the offense charged.’ [Citations.]” ( People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Subs tantial evidence is that ev idence which is “reasonable, credible, and of solid value.” ( People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘[W]hile substantial evidence may consist of inferences , such inferences must be “a product of5 logic and reason” and “must rest on the eviden ce” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’” ( In re Savannah
M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics omitted.) “Evi dence which merely raises a strong suspicion of th e defendant’s guilt is not suffici ent to support a conviction.” ( People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court must “p resume[] in support of th e judgment the existence of every fact the trier could reasona bly deduce from the evidence.” ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) “[A] reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citati on.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trie r of fact. [Citation.] Moreover, unless the testimony is physically impossible or inhe rently improbable, testimony of a single witness is sufficient to support a conviction.” ( People v. Young (2005) 34 Cal.4th 1149, 1181.) These principles are applicable re gardless of whether the prosecution relies primarily on direct or on circumstantial evidence. ( People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Analysis Appellant bases his challenge to the su fficiency of the evidence supporting his adjudication chiefly on People v. Carvalho (1952) 112 Cal.App.2d 482 ( Carvalho ). In that case, the appellate court reversed th e defendant’s convictio n of kidnapping his estranged wife while armed. ( Id . at p. 493.) Although the alleged victim testified she was in fear of the defendant, the court noted that “[n]either during the time the complainant was with appellant nor in the month thereafter did her actions and conduct reflect any fear of him.” ( Id. at p. 490.) The complainan t had numerous opportunities to leave, but chose not to. And she testified th at while she was with the defendant at his rooming house, purportedl y against her will, they “comme nced ‘making love,’ which was consummated by an act of sexual intercourse between them. [Then,] he went down the6 hall to the bathroom while the prosecutrix remained in the bedr oom where the weapon was allegedly reposing on the dr esser or in a drawer, and sh e waited for him to return. Appellant then shaved, removed his clothing and proceeded to ta ke a bath. With all this opportunity to leave she proc eeded into the bathroom and washed his back, neck and arms for him.” ( Ibid. ) Later, the couple went to a café, and “[w]hile enroute to dinner she stopped her automobile, alig hted therefrom, went into a public telephone booth and called her son. She did not advise her s on of her claimed predicament, nor did she telephone the police. [¶] When appellant fina lly left her, saying he would take a streetcar to his home, she made no co mplaint to the police.” ( Ibid .) The Carvalho court held that “the verdict rendered” was not “‘reasonably’ justified by the facts and circumstances disclosed by the evidence” b ecause the complainant’s tes timony was “putting it mildly,” “fantastic.” ( Id . at p. 489.) “[T]he circumstances testified to by th e complainant are more than unusual. They do vi olence to reason, challenge credulity, and in the light of human experience, emasculate every known propensity and pa ssion of people under the conditions testified to by the prosecutrix.” ( Ibid .) It appears that appellant likens the instant case to Carvalho in four respects. First, he asserts that Frank could not have even been at Golden We st High School at lunch on the day of the robbery because he was not allowed to leave hi s own school at lunch time, and therefore Frank’s testimony that he made a knife available to appellant provides no support for the prosecution case. We disa gree. The proposition that a high school student could and woul d sneak off campus hardly pres ents a “challenge to credulity” ( Carvalho , supra , 112 Cal.App.2d at p. 489) on the order of that presented by the testimony of the complainant in Carvalho

. Second, appellant argues it is similarl y “unbelievable” that he, believing his movements were being electronically monitore d, would have committed a crime. There was however, no evidence adduced at the heari ng regarding appellant’s participation in,7 or beliefs about, the electronic monitoring program, and our review of the instant adjudication is limited to eviden ce before the court at the ju risdiction hearing. Therefore this point cannot be cons idered on appeal. (Cf. In re J.N. (2010) 181 Cal.App.4th 1010, 1022 [in juvenile dependenc y proceedings “‘Proof ... must be adduced to support a finding that the minor is a pe rson described by Section 300’ at the jurisdiction hearing ” (italics added)]; People v. Fiscalini (1991) 228 Cal.App.3d 1639 , 1644, fn. 5 [review of denial of Penal Code section 1538.5 suppressi on motion is limited to evidence before the court at the suppression motion hearing].) Bu t even assuming for the sake of argument that we may view the record as containing evidence that appellant thought he was being electronically monitored, Carvalho is nonetheless distinguishable. Unfortunately, spectacularly bad judgment does not run counter to human nature, as did the claimed conduct of the comp laining witness in Carvalho

. Third, appellant suggests it is impossibl e that he committed the instant offense because it is undisputed the robber “took o ff” after the robbery, and appellant suffers from breathing problems that render him un able to run and therefore, Richard’s testimony, like the testimony of the complaining witness in Carvalho , cannot constitute substantial evidence. However, there was no evidence adduced at the hearing regarding appellant’s physical limitati ons and/or his ability to run and therefore, as with the contention discussed above, this point also may not be considered on appeal. And in any event, assuming for the sake of argument that appellant did presen t evidence on this point, appellant’s argument is based on a fals e premise, viz., that the person who robbed him ran away. As indicated above, Richard did not testify that appellant ran away, only that he “took off,” i.e., left the scene. Fourth, appellant argues the instant case “bears [a] re semblance[]” to Carvalho because, he asserts, the following factors rend er Richard’s identificat ion of appellant as the robber “weak and unreliable”: (1) Richard suffers from a mental disorder that causes8 him to hallucinate, and (2) even after seeing a photograph of appellant in the principal’s office a few days after the robbery, he “was a little unsure of his assailant’s identity and wanted to see appellant in person be fore making the identification.” These factors, however, do no more than m ilitate in favor of a conclusion contrary to that reached by the juven ile court. They do not co mpel a contrary finding. Notwithstanding that Richard had, on occasi ons, experienced halluci nations and that he needed additional time to be sure of his id entification of appellant from a photograph, it cannot be said that it was physically impossibl e or inherently improbable that, as Richard testified, appellant robbed him. Appellant’s argument, in esse nce, asks us to reweigh the evidence, and this we cannot, an d will not do. As indicated ab ove, we resolve conflicts in the evidence, and the inferen ces drawn from the evidence, in favor of the judgment, and the testimony of a single witness is suffici ent to establish guilt un less such testimony is physically impossible or inherently improbable . Richard’s identification of appellant was neither. Finally, appellant argues that the fo llowing factors support his position: (1) Although Richard provided a description of the robber and the robber’s companion, the prosecution did not offer evidence of what appellant was wearing on the day of the robbery or the color of his ha ir, and (2) no knife was found in appellant’s possession or in his residence. But these factors too, at most, support an infere nce contrary to the conclusion reached by th e juvenile court and, under the principles of judicial review summarized above, we resolve such conflicts in favor of the judgment. On this record substantial evidence supports th e instant adjudication. Therefore, appellant’s challenge to the sufficiency of the evidence supporting that adjudication fails. DISPOSITION The judgment is affirmed.