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Filed 2/28/14 In re J.W. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re J.W., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.W.,

Defendant and Appellant.

 A139453

 (Alameda County

 Super. Ct. No. J170033)

J.W. (appellant), born in 1997, challenges the juvenile court’s jurisdictional and 

dispositional orders finding he committed first degree robbery (Pen. Code, § 212.5, 

subd. (a)1) and placing him on probation. Appellant’s counsel has filed a brief pursuant 

to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent 

review of the record. Appellant was informed of his right to file a supplemental brief and 

did not do so. Having independently reviewed the record, we conclude there are no 

issues that require further briefing, and shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On December 10, 2012, an original petition under Welfare and Institutions Code 

section 602 was filed in the San Francisco Superior Court alleging appellant committed 

 

1All further statutory references are to the Penal Code unless otherwise stated.
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first degree robbery (§ 212.5, subd. (a)). On June 3, 2013, following a contested 

jurisdictional hearing, the court found the allegation true. After the jurisdictional finding, 

the San Francisco County Superior Court transferred appellant’s case to the Alameda 

County Superior Court, where appellant had been previously adjudged a ward of the 

court and placed on probation for being habitually truant and for failing to comply with 

the mandates of the District Attorney’s Office Truancy Mediation Program. The 

Alameda County Superior Court ordered appellant be detained at the Juvenile Justice 

Center pending disposition and terminated his probation on the prior petition. 

The petition was based on an incident that occurred on December 6, 2012. A little 

before 8:00 p.m. that evening, Jeffrey Wong was riding a Daly City Bay Area Rapid 

Transit (BART) train home from work. He was tired from having volunteered at a high 

school at 8:00 a.m. that morning, before working from 11:00 a.m. to 7:30 p.m. as a 

manager at a café. He was listening to music on his iPhone using headphones, falling 

asleep on and off while on the train. He held the iPhone in his hand, which was in his 

pocket, and periodically took it out to check the time. There were not a lot of people on 

the train. At the 24th and Mission BART station, three men came from the adjoining car 

and sat near him. One sat in front of Wong and the two others sat across the aisle from 

him to his right. 

As the train neared Balboa Park station, the three men got up. At that point, “there 

was only one other passenger in the car with [Wong] besides the three [men].” One man, 

who was wearing a Raiders hat and a white shirt, and had “really big pudgy lips,” stood 

in the aisle near Wong. Another man, who had dreadlocks and “really big,” “big white 

eyes,” stood by the back exit door. The third man, who wore a black leather jacket, stood 

at the entrance from the BART train to the BART station. Wong remained seated but felt

“startled” as the men got up and stood in their positions. 

As the train came to a stop and the door opened, the man in the Raiders hat who 

was standing nearby grabbed Wong’s phone, snatched it out of his hand, and ran out of 

the train. Wong suffered a cut to his finger when he struggled to prevent the man from 

taking his iPhone. The three men exited and ran off together. Wong chased them, but the 
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three men went out through an emergency exit and the alarm sounded. Wong gave up 

pursuing the men and went to the station officer to report the incident. 

The station officer “wired [Wong] over to a police officer,” and Wong told the 

officer what occurred. Wong also told the officer that he had signed up for “iCloud” on 

his iPhone—an application that can be used to track the location of the phone. Wong 

described the three men to the officer, stating they were all African-American men and 

were “pretty dark.” The first man had dreadlocks and was wearing a grey sweater with 

stripes and baggy blue jeans. He was not the one who took the phone. The second man 

was wearing a Raiders hat. The officer asked Wong if the “guy in the Raiders hat” was 

the one who had taken his iPhone, and Wong responded, “I think it was the guy in the 

Raiders hat.” Wong told the officer that he “didn’t get a catch of the third guy.” 

Wong’s iPhone was tracked to the area of 239 Seneca Avenue, and several officers 

responded. Officers Dudley, Hunt, Antonian, and Gauf responded in a car that was 

driven by Gauf. When they arrived in the area, Dudley and Hunt exited the car and 

walked north into a school courtyard; Antonian stayed in the car with Gauf. Inside the

schoolyard, Dudley and Hunt saw “three black males huddled somewhere in this area—

this playground area (indicating).” Hunt shined a flashlight on them, and the three males 

ran. Dudley and Hunt chased after them. Seeing Dudley and Hunt begin to sprint inside 

the schoolyard, Antonian and Gauf drove to the other side of the school. Antonian and 

Gauf arrived in time to see three males jumping down from a fence bordering the school. 

Landing on the ground, the three males ran towards Gauf and Antonian. The two officers 

exited the car. Antonian identified himself as a police officer, drew his weapon, and told 

all three to get on the ground. Appellant and D.D. got on the ground, but D.A. kept 

running, headed toward Ocean Avenue. Hunt eventually found D.A. and pulled him out 

from under a nearby car. Dudley backtracked along the chase route. He discovered a 

plaid shirt, a faux black leather jacket, and a cell phone. 

Police officers told Wong that they found individuals who fit the description he 

had given. Wong got into a patrol car with BART Police Officer Shean and went with 

him to see if he could identify any of them. At the first stop, the police presented D.A. 
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and asked Wong whether this was the person who had taken his phone. Wong “wasn’t 

too sure.” He “wasn’t able to identify that person.” Wong did not remember a 

cautionary admonition, but Shean testified that he gave Wong a standard admonishment 

from a card that he carried. Shean then took Wong to a second location a couple of 

blocks away where he was presented with D.D. and appellant. Wong testified that he was 

able to identify D.D. “as the person on the BART train because he had the dreads and the 

big distinctive white eyes.” Even though D.D. was now wearing the Raiders hat, Wong 

was certain he was not the one who had taken his phone. Wong knew that the person 

who had taken his phone was the man who was wearing a Raiders hat on the train and 

had a white shirt and distinctive lips. Wong identified the phone that was recovered as 

his and used his password to unlock the phone. 

At the close of the prosecution’s case, defense counsel moved for a directed 

verdict (Welf. & Inst. Code, § 701.1). The court denied the motion “based upon the 

court’s weighing of the evidence.” The court was “satisfied that at this stage of the

proceedings after weighing the evidence that the petitioner has met its burden of proof of 

showing all elements of the charges in the petition either based upon a direct activity of 

the minor or as an aider and abetter on both alternatives.” The court therefore denied the 

motion. 

Appellant’s grandmother and appellant’s cousin testified that D.A. admitted to 

being the one who took the phone. 

After hearing the evidence and argument, the juvenile court found the State had 

proved beyond a reasonable doubt that appellant was the one who had taken Wong’s 

iPhone. The court further stated, “it’s also clear to the Court that liability would also rest

based upon aiding and abetting.” The court noted that the three men “stood up and in

different locations and as soon as the iPhone was taken, all three left the BART train by 

the same exit and all three ran through the emergency exit and on to a street and then on 

to an area where police chased them.” The court noted that police found the cell phone 

and a leather jacket worn by one of the three men in the same area. The court concluded, 

“[T]here was proof beyond a reasonable doubt that the three individuals involved in this 
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theft were in agreement as to an intent to commit a theft, in this case a robbery by force, 

from someone who may be carrying a cell phone.” The court adjudged appellant a ward 

of the court, ordered 40 hours of community service, and released him to the custody of 

his grandmother. Appellant filed a notice of appeal on August 8, 2013. 

DISCUSSION

Appellant’s counsel asserts there may be an arguable issue relating to a 

Trombetta/Youngblood/Sivilla motion2appellant filed below in which he argued the 

petition should be dismissed because the state failed to preserve exculpatory evidence. 

Specifically, appellant argued that BART’s security videos, which he had made efforts to 

obtain, would have proven that he was not the person who took Wong’s iPhone. 

At the hearing on appellant’s motion, BART police detective Mike Maes testified 

that he interviewed appellant and D.D. on December 6, 2012, as part of an investigation 

of a cell phone theft. During the interview, D.D. asked, “Do you guys . . . have the 

BART cameras for the BART?” D.D. denied he did “anything” and said, “And I mean, if 

you see it on the camera, obviously you know that I didn’t do it.” Appellant said “he was 

innocent as far as taking the iPhone,” and said he wanted to have the BART video “to 

show that.” From his conversations with appellant and D.D., Maes understood the video 

was important and might prove that appellant and D.D. were not involved in the crime. 

Maes testified that a Community Service Officer (CSO) was responsible for recovering 

BART videos. He testified, “You have to have the training to do it. . . . And so in this 

case it was left for a CSO to recover the video.” The defense had marked as exhibit C a 

defense discovery request to the district attorney’s office, served December 11, 2012, for 

the BART video. Appellant’s exhibit D was a defense subpoena for these records, faxed 

to BART on December 13, 2012. 

Officer Shean testified that he determined the incident “may have occurred in one 

of two cars [, car 363 or car 2564,] on the BART train that was involved.” He “requested 

[the] video[s] be checked for both cars” by sending an email through BART email, 

 

2California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 

U.S. 51; United States v. Sivilla (9th Cir. 2013) 714 F.3d 1168.
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pursuant to standard protocol. It was later determined that car 363 was not a video car 

and that car 2564 was. Shean’s responsibility was limited to sending an email requesting 

the video and noting in his report that he had done so.

Larry Reed, a BART civilian employee, was the only CSO employed by BART to 

recover videos requested by law enforcement. Reed worked four 10-hour days each 

week, Monday through Thursday. When he was gone, videos were not recovered. The 

video recordings on many of the BART trains were preserved for up to 72 hours. Here, 

the incident occurred on the evening of December 6, 2012, which was a Thursday. Reed 

therefore did not receive the request to preserve the videos until he returned to work 

Monday morning, more than 72 hours after the recording would have been made. When 

he returned to work and received the request, Reed determined he could not recover the 

video, even if it had existed. He testified that even though car 2564 had a camera, there 

was no guarantee that the camera was recording or that the images were being stored. 

Reed further testified that BART has a procedure where a request may be deemed

“critical.” If the video is considered “critical,” a lieutenant can call Reed at home and 

have him recover the video, or can ask Reed’s boss, who is a Sergeant, to access it. If the 

Lieutenant has the knowledge, she can also access it herself. In Reed’s experience,

“critical” incidents were limited to shootings or deaths. 

The juvenile court denied the motion. The court found that the BART agents had 

acted in good faith and that it was unclear whether a recording was actually made or what 

the quality of any recording would have been. Accordingly, the court was not persuaded 

that the contested evidence “possess[ed] an exculpatory value that was apparent before it 

was destroyed . . . .” The court noted that the evidence might even have been 

inculpatory. 

It is well established that the police have no obligation to collect evidence for the 

defense. (People v. Holt (1997) 15 Cal.4th 619, 664; People v. Wimberly (1992) 5 

Cal.App.4th 773, 791.) However, “[l]aw enforcement agencies have a duty, under the 

due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be 

expected to play a significant role in the suspect’s defense.’ [Citations.] To fall within 
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the scope of this duty, the evidence ‘must both possess an exculpatory value that was 

apparent before the evidence was destroyed, and be of such a nature that the defendant 

would be unable to obtain comparable evidence by other reasonably available means.’ 

[Citations.]” (People v. Roybal (1998) 19 Cal.4th 481, 509–510, quoting California v. 

Trombetta, supra, 467 U.S. at pp. 488, 489.) “ ‘[U]nless a criminal defendant can show 

bad faith on the part of the police, failure to preserve potentially useful evidence does not 

constitute a denial of due process of law.’ ” (People v. Hines (1997) 15 Cal.4th 997, 

1042, quoting Arizona v. Youngblood, supra, 488 U.S at p. 58.) Negligence does not 

constitute bad faith. (Arizona v. Youngblood, supra, 488 U.S. at p. 58.)

Applying those legal principles to the case before us, we conclude that the denial 

of appellant’s Trombetta/Youngblood/Sivilla motion does not raise an issue that requires 

further briefing. We have examined the entire record and are satisfied that appellant’s 

counsel has fully complied with his responsibilities and that no arguable issues exist. 

(See People v. Wende, supra, 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.