In re R.C. CA2/6

Filed 10/1/20 In re R.C. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

IN RE R.C., A Person Coming 2d Juv. No. B301298
Under the Juvenile Court Law. (Super. Ct. No. PJ52748)
(Los Angeles County)
_____________________________

THE PEOPLE OF THE STATE
OF CALIFORNIA,

Plaintiff and Respondent,

v.

R.C.,

Defendant and Appellant.

R.C. appeals the juvenile court’s order sustaining a
wardship petition after finding true allegations that appellant
committed an assault with a firearm (Pen. Code,1 § 245, subd.
(a)(2)) and an assault with a deadly weapon (id., subd. (a)(1)).

All statutory references are to the Penal Code unless
1

otherwise stated.
(Welf. & Inst. Code, § 602.) The court also found true allegations
as to both counts that appellant personally used and discharged a
firearm (§ 12022.53).2 Appellant was declared a ward with a
maximum term of confinement of 15 years and was placed in
Dorothy Kirby Center for treatment. Appellant contends (1) the
court erred in excluding certain evidence as inadmissible
hearsay; (2) the court erred in denying his motion to dismiss for
failure to preserve exculpatory evidence, as contemplated in
California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413]
(Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102
L.Ed.2d 281] (Youngblood); and (3) the evidence is insufficient to
support the finding that appellant committed an assault with a
firearm and the allegations that he personally used a firearm.
We affirm.
FACTS AND PROCEDURAL HISTORY
Prosecution
Shortly before 10:00 a.m. on September 25, 2019, Walter
Alcott was sitting in his parked vehicle in North Hills with the
windows rolled down when he heard a gunshot. Alcott, who had
regularly used firearms for over 35 years and recognized the

2 The petition also alleged that appellant committed an
attempted murder (§§ 187, 664) and that all of the offenses were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(B)). After the prosecution rested its case-in-chief,
appellant filed a motion for acquittal under Welfare and
Institutions Code section 701.1. The prosecution conceded that
the evidence was insufficient to support the gang enhancement
allegations because the expert who would testify to the requisite
predicate gang offenses was unavailable, and accordingly moved
to dismiss those allegations. The court granted the motion, and
also dismissed the attempted murder count for insufficient
evidence.

2
sound of a “real firearm,” looked in the direction of the gunshot
he had heard and saw a male standing in the middle of the street
at least 100 feet away pointing a gun at another man. The armed
male shot at the other man three times, then ran away. Alcott
took several photographs of the fleeing male and initially decided
to follow him, then pulled over and called the police.
Maria Prudencio also heard the gunshots and saw a male
repeatedly shooting at another person before fleeing. Prudencio
had no experience with guns and did not know whether the
weapon was a firearm or a BB gun, but the noises she heard
sounded like gunshots. She also saw the victim “moving from one
side to the other” while the shooter was firing at him.
The shootings were depicted on surveillance video from
three nearby locations. After reviewing the videos, the police
were able to identify appellant as the shooter and arrested him.
The firearm used to commit the crime was never found.
Appellant has gang tattoos that are associated with the
Langdon Street gang, and the shooting took place in the gang’s
territory. According to the prosecution’s gang expert, gang
members instill fear in others by using firearms, not BB guns;
firing a BB gun would be “more of a joke.” The expert, who had
investigated over 500 gang-related cases, had never seen a case
in which a gang member had shot at a rival with a BB gun.
Although no shell casings were recovered from the scene, a
revolver does not eject spent casings.
Defense
Los Angeles Police Officer Konrad Vollmer was one of the
officers who responded to the scene after the shooting. Officer

3
Vollmer interviewed Jorge Ocampo, the victim of the shooting.3
At one point during the interview, Ocampo stated that the
weapon used to fire at him was “a BB gun, a pellet gun.
Ocampo went on to state, however, that just before the
shooting, the shooter approached him and asked him where he
was from. Ocampo responded, “nowhere.” The shooter replied
“Sepas Langdon. I got you now.” The shooter then removed a
gun from his waistband that “looked like a revolver, 38” and fired
at Ocampo five or six times. Ocampo described “hearing the five
popping noises like a gun and also smoke coming from that area.”
Ocampo also saw and heard the bullets “fly by him” and
demonstrated how he “sidestepp[ed] or mov[ed] to his side” to
avoid being shot.
Ocampo said “he was in shock from what just happened”
because the shooter had repeatedly fired at him and he “could
have been smoked,” i.e., killed. He also said the shooter had
approached him the day before and asked him “where he was
from.” Officer Vollmer believed that Ocampo had initially
minimized the incident because he feared gang retaliation.
A law student acting on appellant’s behalf conducted an
internet search to see if a weapon that looked like a revolver
could be a BB gun. The law student saw various “revolver-style”
BB guns online, but did not actually see any of the guns.
Moreover, she had never held a BB gun or a revolver and did not
know what a revolver sounds like.

Ocampo did not testify at the hearing. He is apparently
3

homeless and could not be located.

4
 DISCUSSION
Inadmissible Hearsay
Appellant moved in limine to admit the statement of an
unidentified woman that was recorded on an investigating police
officer’s body camera after the shooting.4 As Officer Patrick
Baghdashrian was about to approach witnesses Alcott and
Prudencio near the scene of the shooting, the unidentified woman
walked past the officer and said “[i]t didn’t sound like a real gun.”
Appellant claimed that although the statement was hearsay, it
was admissible (1) as a spontaneous statement under Evidence
Code section 1240, and (2) to impeach the prosecution’s gang
expert’s opinion that a gang member would not use a BB gun to
shoot at a rival. The court found otherwise and accordingly
excluded the evidence as inadmissible hearsay. Appellant
contends the court erred in excluding the statement. We
disagree.
Out-of-court statements offered for the truth of the matter
asserted are hearsay. (Evid. Code, § 1200, subd. (a).) Hearsay is
inadmissible unless it falls under one of the exceptions to the
hearsay rule. (Id., subd. (b).) Under Evidence Code section 1240,
“[e]vidence of a statement is not made inadmissible by the
hearsay rule if the statement: [¶] (a) Purports to narrate,
describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such
perception.” (§ 1240, subds. (a), (b).)

4 Appellant asserts that the recorded statement was made
20 minutes after the shooting. The record reflects, however, that
the statement at issue was recorded at 1:00 p.m., while the
shooting occurred at approximately 10:00 a.m.

5
 In determining whether a statement is admissible under
Evidence Code section 1240, “‘[t]he crucial element [is] . . . the
mental state of the speaker.’” (People v. Brown (2003) 31 Cal.4th
518, 541.) “‘The nature of the utterance—how long it was made
after the startling incident and whether the speaker blurted it
out, for example—may be important, but solely as an indicator of
the mental state of the declarant.’” (Ibid.) “‘Neither lapse of time
between the event and the declarations nor the fact that the
declarations were elicited by questioning deprives the statements
of spontaneity if it nevertheless appears that they were made
under the stress of excitement and while the reflective powers
were still in abeyance.’ [Citation.]” (People v. Poggi (1988) 45
Cal.3d 306, 319, italics omitted.)
Whether a hearsay statement qualifies as a spontaneous
statement is generally a question of fact for the trial court, and
its determination involves an exercise of the court’s discretion.
(People v. Merriman (2014) 60 Cal.4th 1, 65.) We will uphold the
trial court’s determination of facts if it is supported by
substantial evidence and review its decision to admit the
evidence for abuse of discretion. (Ibid.)
The juvenile court did not abuse its discretion in finding
that the subject statement did not qualify as a spontaneous
statement under Evidence Code section 1240. After reviewing
the recording, Officer Baghdasarian noted that the woman who
made the statement was “mild mannered” rather than nervous or
excited. Moreover, the woman continued “casual[ly]” walking
away after making the statement. As the People note, it is also
unclear whether the woman actually saw or heard anything
regarding the shooting. Because the evidence supports a finding
that the statement was not made under the stress of excitement
from having witnessed the shooting, the court did not abuse its

6
discretion in finding it was not spontaneous within the meaning
of Evidence Code section 1240.
Appellant also failed to establish that the statement was
admissible as impeachment evidence. The single case he cites in
support of his claim, Am-Cal Inv. Co. v. Sharlyn Estates, Inc.
(1967) 255 Cal.App.2d 526, merely recognizes that prior
inconsistent statements of a testifying witness or a hearsay
declarant are admissible for impeachment and are not hearsay
because they are not offered for the truth of the matter asserted.
(Id. at p. 542.) The court in that case reasoned “that where a
witness in court testifies to admissible extrajudicial statements of
a third party declarant, the prior or subsequent inconsistent
statements of the declarant may be received when offered in
evidence for purposes of impeachment. [Citations.] . . . The
foregoing rule applies where the hearsay testimony is properly
admitted under some exception to the hearsay rule.” (Ibid.)
Here, appellant did not offer the recorded statement as a
prior inconsistent statement of a testifying witness or hearsay
declarant. To the extent he claims the statement undermined the
gang expert’s opinion that a gang member would not shoot at a
rival with a BB gun, the statement was plainly offered for the
truth of the matter asserted, i.e., that the weapon used in the
shooting “didn’t sound like a real gun.” The court thus did not
abuse its discretion in excluding the statement as inadmissible
hearsay.5

5For the first time on appeal, appellant also contends the
statement was admissible as a public employee record under
Evidence Code section 1280. Appellant did not urge the court to
admit the evidence on this ground, so his contention is forfeited.
In any event, admitting the body cam recording or the transcript

7
 In any event, appellant fails to demonstrate a reasonable
probability that he would have achieved a more favorable result
had the evidence been admitted. (People v. Watson (1956) 46
Cal.2d 818, 836; see also People v. Marks (2003) 31 Cal.4th 197,
226-227 [errors in application of the ordinary rules of evidence
are reviewed under the standard set forth in Watson].) The
juvenile court, as trier of fact, was presented with evidence that
Ocampo had initially described the weapon as a BB gun.
Ocampo, however, went on to identify the weapon as a 38-caliber
revolver and described seeing and hearing bullets fly by him as
appellant was shooting at him. Alcott, who witnessed the
shooting and testified to his experience with firearms, also
unequivocally stated that the weapon was a firearm. As the
People aptly put it, “[t]he additional ambiguous statement of an
anonymous person does not render a different result plausible,
much less reasonably probable.” Accordingly, any error in
excluding the evidence was harmless.
Trombetta/Youngblood Motion
In addition to moving to admit the unidentified woman’s
statement that “[i]t didn’t sound like a real gun,” appellant
moved to dismiss the section 602 petition pursuant to Trombetta
and Youngblood on the ground that the prosecution failed to
obtain the unidentified woman’s name and contact information.
The court denied the motion, reasoning that “there is no due

of that recording under the public records exception would not
render the statements contained within that recording admissible
for the truth of the matter asserted. For the statements to be
admissible for that purpose, appellant had to establish a hearsay
exception. (See People v. Sanchez (2016) 63 Cal.4th 665, 675
[“Multiple hearsay may not be admitted unless there is an
exception for each level”].) Appellant did not do so here.

8
process violation in the failure to obtain the name and address of
this woman.” Appellant contends the court erred. We disagree.
“Due process requires the state preserve evidence in its
possession where it is reasonable to expect the evidence would
play a significant role in the defense.” (People v. Alexander
(2010) 49 Cal.4th 846, 878.) “The evidence must ‘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.’” (Ibid., quoting Trombetta, supra, 467 U.S. at
p. 489.) “If the evidence’s exculpatory value is apparent and no
comparable evidence is reasonably available, due process
precludes the state from destroying it.” (People v. Duff (2014) 58
Cal.4th 527, 549.) “If, however, ‘no more can be said [of the
evidence] than that it . . . might have exonerated the defendant,’
[citation] the proscriptions of the federal Constitution are
narrower; ‘unless 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.’” (Ibid.,
quoting Youngblood, supra, 488 U.S. at pp. 57-58.) “Thus, there
is a distinction between Trombetta’s ‘exculpatory value that was
apparent’ criteria and the standard set forth in Youngblood for
‘potentially useful’ evidence. If the higher standard of apparent
exculpatory value is met, the motion [to dismiss] is granted in the
defendant’s favor. But if the best that can be said of the evidence
is that it was ‘potentially useful,’ the defendant must also
establish bad faith on the part of the police or prosecution.”
(People v. Alvarez (2014) 229 Cal.App.4th 761, 773 (Alvarez).)
“On review, we must determine whether, viewing the evidence in
the light most favorable to the superior court’s finding, there was

9
substantial evidence to support its ruling.” (People v. Roybal
(1998) 19 Cal.4th 481, 510.)
Substantial evidence supports the court’s denial of
appellant’s Trombetta/Youngblood motion. Although law
enforcement has a duty to preserve exculpatory or potentially
exculpatory evidence in its possession, “due process does not
require the police to collect particular items of evidence.
[Citation.] ‘The police cannot be expected to “gather up
everything which might eventually prove useful to the defense.”’
[Citation.]” (People v. Montes (2014) 58 Cal.4th 809, 837 see also
People v. Daniels (1991) 52 Cal.3d 815, 855 [“[T]he police duty to
obtain exculpatory evidence is not as strong as its duty to
preserve evidence already obtained”].) “To date there is no
authority for the proposition that sanctions should be imposed for
a failure to gather evidence as opposed to a failure to preserve
evidence.” (People v. Harris (1985) 165 Cal.App.3d 324, 329; see
also People v. Bradley (1984) 159 Cal.App.3d 399, 406 [“[W]e have
found no cases of precedential value which squarely hold that the
prosecution’s duty to preserve material evidence encompasses an
initial duty to affirmatively collect or gather or seize potentially
material evidence in the course of an investigation for
defendant’s use”].) Appellant does not cite any such authority.
Moreover, the statement “it didn’t sound like a real gun”
may or may not have been exculpatory. It is unclear whether the
speaker of that statement actually heard the gunshots or
whether she has any particular experience regarding the sounds
emitted by “real” guns. “[T]he mere ‘possibility’ that
information . . . may ultimately prove exculpatory ‘is not enough
to satisfy the standard of constitutional materiality.’” (City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, 8, quoting
Youngblood, supra, 488 U.S. at p. 56.)

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 Since “the best that can be said of the evidence is that it
was ‘potentially useful’” (Alvarez, supra, 229 Cal.App.4th at
p. 773), to warrant the sanction of dismissal appellant would
have to establish that the police acted in bad faith in failing to
obtain more information from the unidentified woman. Appellant
made no such showing here. Although he offers that the police
“preserved the testimony of witnesses” Alcott and Prudencio,
Alcott (who reported the shooting to the police) and Prudencio
made clear that they were witnesses to the shooting and made
themselves available for further questioning. As Officer
Baghdarian testified, when the unidentified woman walked past
him he was focused on identifying the perpetrator of the shooting
and Ocampo had indicated that the weapon used in the shooting
was a BB or pellet gun. Moreover, Officer Baghdarian testified
that he had no independent recollection of the woman having
made the statement recorded on his body cam. Viewing the
record in the light most favorable to the juvenile court’s ruling,
the court could reasonably conclude “[t]here is no evidence of
official animus toward defendant on the part of [Officer
Baghdarian] or any conscious effort on his part to suppress
exculpatory evidence.” (People v. Angeles (1985) 172 Cal.App.3d
1203, 1214.) Accordingly, appellant’s Trombetta/Youngblood
motion to dismiss was properly denied.
Sufficiency of the Evidence
Appellant claims the evidence is insufficient to support the
juvenile court’s finding that the weapon he used to shoot at
Ocampo was a firearm rather than a BB gun. In adjudicating
this claim, we “must review the whole record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—i.e., evidence that is credible and of solid
value—from which a reasonable trier of fact could have found the

11
defendant guilty beyond a reasonable doubt.” (People v. Nguyen
(2015) 61 Cal.4th 1015, 1054-1055, internal quotation marks
omitted.) We “presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the
evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A
reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support’” the jury’s verdict.” (Ibid.)
A firearm is “a device, designed to be used as a weapon,
from which is expelled through a barrel, a projectile by the force
of an explosion or other form of combustion.” (§ 16520, subd. (a);
accord, CALCRIM No. 980.) A pellet or BB gun, which “uses
compressed air rather than an explosive to project a bullet, . . . is
not a ‘firearm’ as that word is commonly defined. [Citation.]” (In
re Jose A. (1992) 5 Cal.App.4th 697, 700-701.) “The fact that an
object used by a [criminal perpetrator] was a ‘firearm’ can be
established by direct or circumstantial evidence.” (People v.
Monjaras (2008) 164 Cal.App.4th 1432, 1435.)
“Most often, circumstantial evidence alone is used to prove
[an] object was a firearm. This is so because when faced with
what appears to be a gun, displayed with an explicit or implicit
threat to use it, few victims have the composure and opportunity
to closely examine the object; and in any event, victims often lack
expertise to tell whether it is a real firearm or an imitation.”
(People v. Monjaras, supra, 164 Cal.App.4th at p. 1436.)
Accordingly, “[c]ircumstantial evidence alone is sufficient to
support a finding that an object used by a [criminal perpetrator]
was a firearm.” (Ibid.) When a defendant commits a crime with
an object that looks like a gun, “the object’s appearance and the
defendant’s conduct and words in using it may constitute
sufficient circumstantial evidence to support a finding that it was

12
a firearm within the meaning of section 12022.53, subdivision (b).
In other words, the victim’s inability to say conclusively that the
gun was real . . . does not create a reasonable doubt, as a matter
of law, that the gun was a firearm.” (Id. at p. 1437.)
Sufficient evidence supports the finding that appellant
assaulted Ocampo with a firearm rather than a BB gun. In
arguing to the contrary, appellant makes no reference to
Ocampo’s detailed description of the weapon as a firearm. He
also downplays Alcott’s testimony that he saw and heard
appellant shoot at Ocampo with a firearm. As the People note,
“[t]he determination . . . whether the gun here was a firearm or a
BB gun was a disputed question for the juvenile court to resolve
as the trier of fact. Mr. Alcott’s testimony alone was sufficient to
prove the weapon was a firearm.” Appellant’s claim of
insufficient evidence thus fails.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

TANGEMAN, J.

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 Christina L. Hill, Judge
Superior Court County of Los Angeles
______________________________

Sean K. Kennedy, Tiffany Wood, Certified Law Student,
Center for Juvenile Law and Policy, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.