Gustavo M., In re
| Decision Date | 26 October 1989 |
| Docket Number | No. H005463,H005463 |
| Citation | 263 Cal.Rptr. 328,214 Cal.App.3d 1485 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re GUSTAVO M., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. GUSTAVO M., Defendant and Appellant. |
Sixth Dist. Appellate Program, Santa Clara, in association with Arthur Dudley and Page & Coben, Santa Cruz, for defendant and appellant (under appointment by the Court of Appeal).
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Christopher J. Wei, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Gustavo M., a minor placed at the California Youth Authority (hereafter, CYA) for a maximum term of six years, appeals from the judgment of the San Benito County Juvenile Court declaring him a ward of the court pursuant to Welfare and Institutions Code section 602, 1 on the finding that he had committed the offenses of assault with intent to commit rape (Pen.Code, § 220) and sexual battery (Pen.Code, § 243.4).
We affirm the order committing appellant to the CYA and remand for proceedings consistent with this opinion.
On December 22, 1986, 28-year-old Karen Carrillo was alone at the Hollister Community Center around 8 p.m., locking up after her dance-exercise class had finished. A karate class held in an adjacent room had ended earlier and everyone had apparently gone home. However, as she checked the room before turning on the alarm system, she saw a young male behind a partition. She gave him a look as if to say, "leave," and he walked toward the door, but then turned and came toward her. They struggled briefly, then he applied a wrestling hold known as a "takedown," and they landed on the floor. Karen was five feet one inch and 118 pounds; the young man was about five feet eight inches and 150 pounds.
As they struggled together on the floor, he tried to remove her clothing, but was unsuccessful since she was wearing a one-piece leotard, tights, parachute pants, leg warmers, and a sweatshirt. However he did pull her upper right portion of her leotard and her right bra strap down over her right shoulder, briefly touching her breast in a "very awkward caress." As they struggled, he touched her chest "a lot" through her clothing, and touched her vaginal area on the outside of her clothing while he tried to remove her pants. Karen was angry and repeatedly asked him what his problem was. He said: At one point, she said: "Let's talk," to which he responded:
During the assault, he started to choke her, bent her arm back and threatened to break it, saying She told him she was pregnant, and asked him not to harm her baby, to which he responded by raising his fist over her abdomen, telling her that he would kill it if she did not give him what he wanted. He also kicked or kneed her in the back. While she was on the floor looking at his face, she tried to think of distinctive marks or anything that would help later on in finding him. She managed to get into a sitting position and, as he briefly let go, she ran out of the room without looking back.
To police, she described her attacker as possibly 18 to 20 years old, with no beard, mustache, or "five o'clock shadow," about 5'8"' and 150 pounds, with a medium build and curly brown hair and eyes, of Caucasian-Mexican descent, but without an accent. He was wearing dirty gray sweatpants, a zip-up hooded sweatshirt, and a pink or peach dress shirt. His most memorable feature was his eyes, which slanted under thin, light eyebrows.
The next day, she assembled a composite drawing and repeated her original description. She eventually examined between 200 and 300 photographs, and did not identify her attacker. Finally, in August 1988, she was shown a photo lineup of six subjects. Appellant's photograph made her nervous when she saw it. "This sure could be him," she said. "He's a lot fatter now." She identified another photograph of him in a yearbook, saying she was greater than 50 percent sure but not 100 percent sure. However, when she saw him in person in a lineup, she was certain. She again identified him at the jurisdictional hearing on October 11, 1988, and identified a photograph of him that was proffered by the defense.
Karen admitted she was a poor judge of weight and that she might have been wrong about her estimate. She also testified that she thought she saw her assailant on two later occasions, but that since she hadn't been sure, she had not notified the authorities.
Appellant offered a declaration from his physician that he weighed 179 pounds in October 1988. Appellant's sister testified that she heard the district attorney ask Karen if she was sure of her identification, and that Karen answered that she was "pretty sure" but not "really sure," and that the district attorney told her to say she was "sure."
Appellant denied assaulting Karen and claimed that he had never seen her before although he had been present at many ballgames in which her boyfriend had been
playing, and although he had worked at the Community Center for five days in 1987 during a time when Karen was teaching a class there. He was 15 years old; he had never worn his hair over his ears as depicted in the composite drawing, and he had been a high school wrestler for two years. He was not sure if he owned a gray sweatshirt, and he did not own gray sweatpants.
Appellant now argues that the proceedings were barred by the applicable statute of limitations, that there was insufficient evidence that he was the attacker, that there was insufficient evidence to support a finding of sexual battery, and that the court erred in failing to award precommitment custody credits.
Appellant presents a question of first impression. He contends that since imprisonment is not available as a penalty for a minor adjudicated a ward of the court under section 602 because of a criminal offense, the one-year statute of limitations enunciated by Penal Code section 802 should apply. 2 He urges us to accept the reasoning that since a juvenile proceeding does not transform a minor's conduct into either a "felony" or a "misdemeanor" (citing In re Anthony R. (1984) 154 Cal.App.3d 772, 778, 201 Cal.Rptr. 299), and "since a minor ward, at worst, may only be confined in a Youth Authority facility, rather than imprisoned in state prison, the minor's conduct cannot ever be correctly classified as a 'felony' even if it had been perpetrated by someone actually subject to punishment as an adult" (citing In re Michael S. (1983) 141 Cal.App.3d 814, 817, 190 Cal.Rptr. 585). Therefore, he argues, the case against him should be timebarred, since the petition in his case was not filed until a year and seven months after the offense.
Respondent answers that the applicable statute of limitations should be determined as it is for adults, namely, by reference to the penalty provided by the Legislature, regardless of the fact that a juvenile may not be sent to state prison. Respondent argues since appellant's offenses, proscribed under Penal Code sections 220 and 243.4, were alleged as felonies in the petition, were determined to be felonies by the court, 3 and would be punishable by imprisonment were appellant an adult, the three-year statute of limitations provided by Penal Code section 801 should apply.
We agree that Penal Code section 801 is applicable.
" " (United States v. Marion (1971) 404 U.S. 307, 323, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 citing Toussie v. United States (1970) 397 U.S. 112, 114-115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156.)
Although a proceeding in the juvenile court is not a criminal proceeding (§ 203), the statutory grant of jurisdiction over a minor under section 602 is based on criminal conduct: "Any person who is under the age of 18 years when he violates any law ... defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile Just as the running of the statute of limitations bars prosecution of an adult, so does it bar prosecution of a minor. (State in Interest of B.H. (1970) 112 N.J.Super. 1, 270 A.2d 72, 74; see also, 1 California Juvenile Court Practice (Cont.Ed.Bar 1981) § 6.10, p. 179.) Protection from prosecution under a statute of limitations is a substantive, not a procedural right (Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 831, 257 Cal.Rptr. 574), and it is jurisdictional: an indictment or information which shows on its face that prosecution is barred by the statute of limitations fails to state a public offense. (People v. Rehman (1964) 62 Cal.2d 135, 139, 41 Cal.Rptr. 457, 396 P.2d 913.) The issue of lack of jurisdiction may be raised for the first time on appeal. (People v. Chadd (1981) 28 Cal.3d 739, 756-757, 170 Cal.Rptr. 798, 621 P.2d 837.)
court, which may adjudge such person to be a ward of the court."
Appellant correctly states that juvenile court proceedings do not result in felony or misdemeanor "convic...
To continue reading
Request your trial
-
Johnson v. Swarthout
... ... credibility do not affect the rule of appellate review that "when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." ( In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497, 263 Cal.Rptr. 328 ( Gustavo M .).) Johnson, however, argues that the eyewitness in Gustavo M. "had close contact with the culprit; she spoke with him and even studied his face for distinctive marks so he could later be found." That eyewitness, however, ... ...
-
People v. Marlow, H010375
... 41 Cal.Rptr.2d 5 ... Previously published at 34 Cal.App.4th 460, 39 Cal.App.4th 343, 43 Cal.App.4th 1440, 48 Cal.App.4th 740 ... 34 Cal.App.4th 460, 39 Cal.App.4th 343, 43 Cal.App.4th 1440, ... 48 Cal.App.4th 740, 63 USLW 2719 ... The PEOPLE, Plaintiff and Respondent, ... Gustavo MARLOW, Jr., Defendant and Appellant ... No. H010375 ... Court of Appeal, Sixth District, California ... April 25, 1995 ... As Modified on Denial of Rehearing May 24, 1995 ... Certified for Partial Publication. * ... Review Granted July 20, 1995 ... [43 Cal.App.4th ... ...
-
Russell v. Foulk
... ... Eyewitness identification testimony is sufficient to support a conviction unless the testimony is physically impossible or Page 20 inherently improbable. ( People v. Scott (1978) 21 Cal.3d 284, 296; In re Gustavo M ... (1989) 214 Cal.App.3d 1485, 1497.) Neither exception applies in this case. The standard of review requires that the evidence most favorable to the respondent be accepted as true and the unfavorable evidence be "discarded as not having sufficient verity to be accepted by the trier of fact." ( In ... ...
-
Eudave v. Hatton
... ... Elliott (2012) 53 Cal.4th 535, 585.) "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]" ( In re Gustavo M ... (1989) 214 Cal.App.3d 1485, 1497.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts ... ...