In re Gerardo M., A122987 (Cal. App. 10/30/2009)

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In re GERARDO M., a Person Coming Under the Juvenile Court Law THE PEOPLE, Plaintiff and Respondent, v. GERARDO M., Defendant and Appellant.

A122987

Court of Appeals of California, First Appellate District, Division Two

October 30, 2009

Appeal from the Marin County, Super. Ct. No. JV24449A.

Not to be Published in Official Reports

RICHMAN, J.

INTRODUCTION

The minor, Gerardo M., appeals from a juvenile wardship proceeding under Welfare and Institutions Code section 602,¹ based on his participation with others in smashing the windows of a parked car while a two-year-old child was strapped in his car seat inside. Gerardo was found to have violated Penal Code sections 273a, subdivision (a) (child endangerment), and 594, subdivision (b)(1) (vandalism), and he was placed on two years' supervised probation. He appeals the finding on child endangerment only, as well as requesting a remand because the juvenile court failed to recite that it knew the underlying offenses were wobblers when it chose to treat them as felonies. Because we find the evidence was sufficient to show that Gerardo aided and abetted both crimes, and the court's decision to treat the offenses as felonies reflected a conscious exercise of its statutory discretion, we affirm the disposition and deny the request for remand.

THE FACTS

On June 19, 2008, 19-year-old Geronima Serrano lived with her parents and two brothers, Salvador Preciado, age 21, and Samuel Serrano, age 16, in Novato. Late that evening, Geronima drove Salvador's 2000 Cadillac Escalade to the store, with Salvador in the front passenger's seat and Adrian, Salvador's two-year-old son, strapped in his car seat in the rear, behind the driver's seat. They returned home after 11:00 p.m. and parked the car in the carport in front of the family home.

Adrian was asleep in his car seat, so they left him there while Geronima went inside to use the bathroom. Salvador went to the kitchen to fix Adrian a bottle before carrying him upstairs to his bed, which Geronima was going to get ready for him. Within five minutes of arriving home, before they had brought the child inside, there was a commotion outside which sent them and the other family members running out to see what was happening.

Salvador was the first one outside. He saw that the windows of his car had been smashed, and he heard Adrian crying. He did not see how the damage had been done, but he saw a group of seven or eight people running away toward a red car.

The back seat window on the driver's side, where Adrian was seated, had been completely broken out. Adrian was covered with broken glass. Salvador pulled his son out of the car through the broken-out window. Adrian was crying hysterically and shaking. Salvador pulled pieces of broken glass out of Adrian's ears, and carried him into the house to undress him. He found broken glass in the boy's diaper. Adrian continued to cry "nonstop" for two or three hours. Even at the time of the jurisdictional hearing, Adrian was fearful, startled easily, and became distraught at sudden noises.

Samuel had been upstairs in his bedroom when he heard running footsteps outside. Looking out his window, he saw a group of six to eight males running toward the parked Escalade. He recognized Gerardo, whom he had known since middle school and from playing soccer, as one of the group. Several of the members of the group were carrying baseball bats and began smashing the windows of Salvador's car, but Samuel did not see a bat in Gerardo's hands and did not see him personally inflict any damage to the car. When Samuel saw the men running toward his brother's car, he ran downstairs and out the front door. By that time the men had run away, and he could not identify any other participants in the attack. The assailants got into two cars, one red and one black, and sped off. The black car belonged to a woman who lived three doors away in the same apartment complex.

Geronima's boyfriend, David Kane, had been parked in his car across the street from the Serranos' home, reclined in the driver's seat, waiting for Geronima to return home. He was situated so that he could see the Serranos' home in his rear view mirror. He heard Salvador's car arrive home and waited for Geronima to come outside.

Shortly thereafter Kane heard a group of people running and male voices shouting as if they were "cheering each other on." He then turned around and saw five to seven males running around Salvador's car and heard windows shattering. He did not specifically see baseball bats, but he saw some members of the group swinging something at the windows of the Escalade. At the jurisdictional hearing, he identified Gerardo as one of the members of the group.

Both front and rear seat windows were broken on the driver's side of the car, as well as another window farther back on the driver's side, and the rear window on that side of the car. There were also new scratches on the car and shoeprints, including one on the rear door behind the driver's seat (nearest to where Adrian was seated), which dented the side of the car.²

Kane saw a red sedan pick up some of the group and drive around the corner. It then stopped and some people from the red car transferred into a black Chrysler. One or two more people got into the red car. Both cars took off, with the red car in the lead.

Kane decided to follow them, but first retrieved a baseball bat from the trunk of his car to protect himself if necessary. As he began following the fleeing cars, Kane dialed 911 and reported the incident. He eventually was able to give the 911 dispatcher the license number of the red car.

At one point, the red car pulled over and allowed Kane to pass. Then it pulled into the street behind Kane's car, picking up speed, so that Kane also sped up to avoid being rear-ended. The red car then pulled alongside Kane's car, and someone in it threw something at Kane's car, which made a loud noise but did no noticeable damage. The right rear seat passenger in the red car leaned out of the window and was making hand gestures and shouting at Kane.

At approximately 11:30 p.m., Novato Police Officer Christopher Andres received a radio report of the incident while on patrol in the vicinity. After locating the cars in question he pulled over the red car, but the black car sped off. Kane took off after the black car while Officer Andres detained the occupants of the red car. Gerardo was a passenger in the red car. The other occupants were two other males.

Kane followed the black car another two to five miles until another police car pulled it over. The black car was occupied by a male and three females.

Officer Jerred Damico went to the victims' house, where he surveyed the damage to Salvador's Escalade. He noticed a shoeprint on the rear quarter panel on the driver's side of the Escalade. He photographed it with his cell phone, measured it using three-by-five inch index cards, and returned to the sites where both the black and red cars were detained. He compared his photo of the shoeprint with the shoes worn by the occupants of both cars. He and Officer Andres both testified that the distinctive diamond pattern on the soles of the shoes worn by Gerardo matched the shoeprint on the Escalade.

It was the prosecutor's theory that Gerardo's active participation in the vandalism was established not only by the witness testimony that he was part of the group, but also by his shoeprint having been left on the Escalade, which showed that he personally kicked the car. Gerardo was the only person prosecuted in the case, as he was the only one whose shoes matched the prints.

Fred Waters, a private investigator who testified on behalf of Gerardo, also examined the shoeprint photos and prepared a trial exhibit comparing them with the shoes worn by Gerardo. Although he agreed that the shoeprint and Gerardo's shoes were made by the same manufacturer, he testified the print was not made by Gerardo's shoes because his shoes showed much more wear than the shoe that made the print on the Escalade.

Salvador testified at the jurisdictional hearing that replacing the broken windows in his car had cost approximately $1,800. At the time of the hearing the dent and scratches had not yet been repaired, so the full extent of the damage was unknown. However, one of the police officers, who formerly had worked in the automotive industry, estimated that the damage to the body of the Escalade would cost $500 to $1,000 to repair.

Although there was no testimony about gang affiliation, it was clear by the time of the dispositional hearing that the incident was gang-related. Gerardo admitted to the probation officer that he "kicks it" with gang members but denied being a member of a gang. His parents were concerned about his gang affiliation and lifestyle. Gerardo had left home about four days before this incident and was hanging out with his gang friends, whose company he said he preferred to that of his family. He told the probation officer that Salvador had instigated the attack by throwing gang signs earlier.

PROCEDURAL BACKGROUND

Gerardo was taken into custody after the car stop. On June 20, 2008, the district attorney filed a petition under Welfare and Institutions Code section 602, alleging one count of vandalism. (Pen. Code, § 594, subd. (b)(1).) On July 10, 2008, the petition was amended to add a felony count of child endangerment (Pen. Code, § 273a, subd. (a)), and the following day it was orally amended to add a misdemeanor count under subdivision (b) of the same section. The difference between the felony and the misdemeanor is that the felony requires that the child be placed in "circumstances or conditions likely to produce great bodily harm or death," whereas the misdemeanor punishes conduct in the absence of such circumstances.

On August 19, 2008, the jurisdictional hearing was held. The court found the first two counts true and dismissed the misdemeanor child endangerment...